WI governor signs revenge porn and social media privacy bills into law; privacy bill raises questions

(Update 1: Included link and excerpt from Rep. Sargent's Op-Ed when the bill was introduced, and further comments - to provide some context)

Governor Scott Walker of Wisconsin signed 62 bills into law today, including SB223 (relating to social media privacy) and SB367 (revenge porn).

A full list of the bills he signed can be found here: At a glance: List of 62 bills Gov. Walker signed, and regarding the two bills mentioned above:

Senate Bill 223 – prohibits employers, educational institutions and landlords from requesting or requiring passwords or other protected access to personal internet accounts of students, employees, and tenants. Viewing, accessing and using information from internet accounts, including social media, in the public domain is allowed. Senator Glenn Grothman (R-West Bend) and Representative Garey Bies (R-Sister Bay) authored the bill which unanimously passed the Senate and passed the Assembly on a voice vote; it is Act 208.

Senate Bill 367 – modernizes Wisconsin’s law relating to disseminating private images and expands protections for victims who have their private images distributed without their consent. Senator Leah Vukmir (R-Wauwatosa) and Representative John Spiros (R-Marshfield) authored the bill which passed both the Senate and the Assembly on a voice vote; it is Act 243. 

I criticized the original revenge porn bill proposal in Wisconsin (see: Wisconsin's "revenge porn" bill goes too far. Hypos to ponder and why the legislature should look to Professor Franks ); specifically, I labeled the original proposal as overbroad because the bill did not include a scienter requirement. In the final bill, after a substitute amendment was adopted, the statutory text has been narrowed with just such a requirement. The bill signed into law requires "knowledge":

942.09 (3m) (a) Whoever does any of the following is guilty of a Class A misdemeanor: 

1. Posts, publishes, or causes to be posted or published, a private representation if the actor knows that the person depicted does not consent to the posting or publication of the private representation. 

2. Posts, publishes, or causes to be posted or published, a depiction of a person that he or she knows is a private representation, without the consent of the person depicted.

The social media privacy bill signed by the governor will surely be lauded by privacy advocates as a win for individual autonomy (and freedom from employer/educational institution snooping). But, I find the exceptions to the bill much more intriguing and noteworthy than the protections most will focus on. Particularly, the interesting carve-outs in bold:

(2) Restrictions on employer access to personal Internet accounts.  

   (a) Except as provided in pars. (b), (c), and (d), no employer may do any of the       following:

1. Request or require an employee or applicant for employment, as a condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account.

2. Discharge or otherwise discriminate against an employee for exercising the right under subd. 1. to refuse to disclose access information for, grant access to, or allow observation of the employee's personal Internet account, opposing a practice prohibited under subd. 1., filing a complaint or attempting to enforce any right under subd. 1., or testifying or assisting in any action or proceeding to enforce any right under subd. 1. 

3. Refuse to hire an applicant for employment because the applicant refused to disclose access information for, grant access to, or allow observation of the applicant's personal Internet account. 

   (b) Paragraph (a) does not prohibit an employer from doing any of the following:
…

2. Discharging or disciplining an employee for transferring the employer's proprietary or confidential information or financial data to the employee's personal Internet account without the employer's authorization.

3. Subject to this subdivision, conducting an investigation or requiring an employee to cooperate in an investigation of any alleged unauthorized transfer of the employer's proprietary or confidential information or financial data to the employee's personal Internet account, if the employer has reasonable cause to believe that such a transfer has occurred, or of any other alleged employment-related misconduct, violation of the law, or violation of the employer's work rules as specified in an employee handbook, if the employer has reasonable cause to believe that activity on the employee's personal Internet account relating to that misconduct or violation has occurred. In conducting an investigation or requiring an employee to cooperate in an investigation under this subdivision, an employer may require an employee to grant access to or allow observation of the employee's personal Internet account, but may not require the employee to disclose access information for that account.

…

 So, an employer may not require you to provide access to your personal Internet account on a whim or a hunch. But, if the employer can point to an Acceptable Use Policy, text in an employee handbook, or can establish reasonable cause to believe employment-related misconduct, the employer can require such access. Sure, you don't have to provide your login/password, but in subsection 3, above, you could be required to grant access (whatever that means).

The social media bill's carve-outs sound a lot like CFAA cases of late, and also general social media prying lawsuits as well. How, then, is this bill a boon for employee/student privacy? Also, if my employer requested I grant access to a personal account, as part of an "investigation," I would almost assuredly deny that request, absent a subpoena. I am very curious how these exceptions will be used by employers going forward.

Update 1: 

Rep. Sargent wrote an Op-Ed in the Milwaukee Journal Sentinel when she proposed the bill (with other representatives). See here: Bipartisan bill protects social media accounts

Later, after the bill made it out of the Senate on a 33-0 vote, Sargent issued a press release. See here: Social Media Protection Bill Passes Senate on a 33-0 Vote. An interesting quote from the release:

I’m pleased that this common sense, bi-partisan legislation advanced further through the legislative process today.  It makes sense that personal internet accounts should be given the same, 4th Amendment protections as other aspects of our daily lives.  People have a reasonable expectation of privacy when interacting with their friends and family on Facebook or other sites. An employer, university, or landlord should not have access to private communications on social media sites. As technology evolves, so must our legislative efforts to protect our citizen’s privacy. The current generation will write the laws on social media.  We must do it carefully and with respect for all parties involved.

There should, in my opinion, be an asterisk (*) after that paragraph, noting that the exceptions may indeed swallow a large chunk of the well-intentioned proposal. If the bill's intent was to prevent forced disclosure of account credentials, then the text should have narrowly reflected that (considering, to wit, that the exceptions do not require providing credentials, but merely providing/granting access). Further, just as some courts have attempted to bring TOS/Acceptable Use Policies/Employee Handbooks within the ambit of CFAA liability, this bill allows varying employer-defined standards to dictate whether an employee must grant access to a social media/personal email account.

Hypo: If an employee handbook states no surfing the internet for personal reasons (or updating social media) during work hours and there is "reasonable cause" to believe that a violation occurred - must the employee grant access to the account to prove otherwise? How is that giving personal internet accounts "4th Amendment protections...[similar to those in] other aspects of our daily lives?" What if the employee refuses to grant access - is that grounds for termination?

More fundamentally, though, is this question: now that the bill has become law, who benefitted more from its enactment: employers, or employees?

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Wis. Sup. Ct. 4th Amendment case: if a probation condition bans possessing a PC (i.e. contraband), you can seize it, but can you search it?

The Wisconsin Supreme Court heard oral arguments today in State v. Purtell, 2012AP001307 - CR (Wis. Sup. Ct. 2014) (link to PDF of docket). A summary from the Wisconsin Public Defender's "On Point site" gives a good synopsis:

Purtell was on probation for animal cruelty convictions, and as a condition of probation was allowed access to computers only for school or work. After Purtell admitted having a laptop at home, his agent went to his home and removed the laptop. She found files showing females, some appearing to be very young, engaged in sexual acts with animals; after a warrant to search the computer was obtained based on that information, police found child pornography. The sole issue on appeal was whether the agent had reasonable suspicion to search Purtell’s computer for “contraband,” which the state argued included images of animal cruelty. The court of appeals held there was no reasonable suspicion, first because Purtell’s conditions of probation didn’t expressly prohibit him from possessing such images, and, second, because the state pointed to no reasonable grounds to believe there was some other kind of contraband on the laptop, but relied only on “generally suspicious” behavior. 

The oral argument can be found in Wisconsin Supreme Court oral argument archive, or click here for a directly link to the streaming wma file.

The Supreme Court's summary of the case can be found in its February oral argument preview. The State (Petitioner), frames the issue in this manner:

The content of Purtell’s computer, like the computer itself, was contraband regardless of whether Purtell’s probation included a rule or condition prohibiting the possession of images depicting cruelty to animals.

Purtell (Respondent), frames it like this:

The Images Retrieved from Mr. Purtell’s Computer Were Inadmissible Because the Probation Agent Did Not Have Reasonable Grounds to Believe the Computer Contained Contraband. 

... 

Courts must separately analyze the reasonableness of a search for a computer and a search of the contents of a computer.

The State's Reply Brief can be found here.

The appellate court, which reversed and remanded the trial court, gives the following background synopsis:

Purtell was convicted of two counts of cruelty to animals, one resulting in the death of the animal, and he was placed on probation.  One condition of Purtell’s probation was that he not own or possess a computer and that he could only use a computer “at his place of business or school.”  The purpose of this prohibition may have been to limit Purtell’s access to certain types of images, but the conditions of his probation did not actually impose a limitation on the types of images or written materials Purtell could possess. 

At a meeting with his probation agent, Purtell complained about the no-computer condition.  Purtell told the agent that he had a working laptop and a desktop computer that did not work, both at his residence.  Purtell also told the agent that he had a Myspace account and gave the agent his Myspace password. 

For reasons that do not matter for purposes of this appeal, Purtell’s agent subsequently went to Purtell’s residence and removed his laptop and desktop computers.  The seizure of Purtell’s computers is not challenged.  Later, at her office, the agent looked at the contents of one of Purtell’s computers. The agent “clicked on files” and observed that titles of the files did not always match the images that were in the files.  The agent located files showing females engaged in sexual acts with animals.  The agent later testified:  “[A] number of the files, when we opened them, had names of like very young females.  [And there was] concern at some point that this was sex involving underage females.” 

Based on information that Purtell’s agent gained from looking at the contents of Purtell’s computers, law enforcement subsequently obtained a warrant to search the computers. The resulting further search revealed a large volume of still images and “videos” depicting young children engaged in sex acts.   

Purtell was charged with eight counts of possession of child pornography.  He moved to suppress the evidence resulting from the search of his computers, arguing that his probation agent performed an illegal warrantless search.  At a hearing on this suppression motion, Purtell’s probation agent testified that, prior to searching the contents of one of Purtell’s computers at her office, she looked at Purtell’s Myspace account.  On that account, she saw pictures of “animals that were partially human,” such as a “woman that was half woman and half a cow.”  The agent testified that, based on what she saw on Purtell’s Myspace account, she thought Purtell’s computers might have “files regarding cruelty to animals or death and mutilation of animals.”  She was concerned about Purtell’s mental health issues. 

After hearing testimony and viewing evidence, the circuit court denied Purtell’s suppression motion.  The court concluded that the agent had “legitimate reasons of probation supervision to view the [contents of the] computers.”  The court stated that the images the agent saw on Purtell’s Myspace account gave the agent reason to believe that there was contraband on Purtell’s computers.

The substance of the appellate court's decision:

As Purtell makes clear, he does not challenge the search of his residence or the seizure of his computers.  Rather, he challenges the search of the contents of his computers.  Indeed, the State and Purtell agree that the issue here is whether Purtell’s probation agent had “reasonable grounds” to believe that Purtell’s computers contained “contraband.”  The parties further agree that “contraband,” for purposes of this case, means any item that Purtell was not allowed to possess under the conditions of his supervision or any item whose possession is forbidden by law. 

So far as we can tell, the State’s sole argument on appeal is that, based on several pieces of information, Purtell’s probation agent had reasonable grounds to believe that Purtell’s computers contained images depicting cruelty to animals or the mutilation of animals, and that such images were “contraband.” However, even if we were persuaded that there were reasonable grounds to believe that Purtell’s computers contained images depicting cruelty to animals or the mutilation of animals, the State fails to demonstrate that such images are “contraband.”
…
…before this court and the circuit court, the State simply pointed to behavior that was generally suspicious, such as the fact that Purtell possessed the computers at home in violation of the conditions of his probation and Purtell’s failure to attend a scheduled mental health treatment appointment.  These and other factors may have justified the probation agent taking some action, but they do not supply “reasonable grounds” to believe that Purtell’s computers contained contraband.  As we have explained, the State’s argument in this regard appears to be based on the faulty assumption that Purtell’s probation conditions prohibited him from possessing images depicting cruelty to animals or the mutilation of animals.  Having rejected that assumption, the State’s arguments leave us with no basis to affirm the circuit court’s denial of Purtell’s suppression motion.  

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Video of Wisconsin Legislature (Committee on Judiciary and Labor) public hearing on AB462/SB367 criminalizing "revenge porn"

Skip to 4:06:50 to hear the short, non-controversial "public hearing" on the Wisconsin "revenge porn" bill. Notably, the representatives noted that the bill was drafted with input with Mary Ann Franks. I find that interesting, given that I called the bill overbroad and noted that it does not in fact follow the model statute proposed by Professor Franks. My post criticizing the bill is here: Wisconsin's "revenge porn" bill goes too far. Hypos to ponder and why the legislature should look to Professor Franks

Video:
11.20.13 | Senate Committee on Judiciary and Labor
Agenda: On November 20, 2013, the Senate Committee on Judiciary and Labor held a public hearing at the state Capitol on the following items: Senate Bill 167, relating to actions for damages caused by wind energy systems; Senate Bill 367, relating to distributing a sexually explicit image without consent and providing a penalty.

**Skip to 4:06:50**

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Wisconsin's "revenge porn" bill goes too far. Hypos to ponder and why the legislature should look to Professor Franks

The Wisconsin legislature recently proposed a "revenge porn" bill (Assembly Bill 462, full text here: https://docs.legis.wisconsin.gov/2013/related/proposals/ab462.pdf). While I applaud the Wisconsin legislature for addressing an issue that has garnered national attention, I interpret the current proposal (unless I am missing something, and I encourage you to prove me wrong), to criminalize a whole host of conduct having nothing to do with revenge porn. (Of course, if the proposed bill ends up becoming law, the text introduced here may vanish in the final Act; that said, I was still quite surprised that such ambiguous and broad language was proposed in the first instance).

Here is the relevant text:

942.09 (3m) (a) Whoever, without the consent of the person represented,
reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates a
representation of a nude or partially nude person or of a person engaging in sexually
explicit conduct is guilty of a Class A misdemeanor. The consent of the person
represented to the capture of the representation or to the possession of the
representation by the actor is not a defense to a violation of this subsection. 

…(various non-controversial exceptions) 

(c) This subsection does not apply if the person represented consented to the
reproduction, distribution, exhibition, publication, transmission, or other
dissemination of the representation for commercial purposes.

This language, to me, omits key words in the model state statute Professor Franks proposes and, by doing so, is overbroad. My reasoning (with hypotheticals calling the language into question):

(1) I think the obvious flaw is omission of a scienter requirement (particularly “intentionally”). If I take a nude photo of my girlfriend with her consent, but accidentally email it to my friend instead of a photo of a wet kitten, I violate this statute. 

(2) The more interesting flaw (and one that implicates the 1st Amendment, perhaps), is that it might criminalize merely emailing any non-commercial pornographic picture. So, if I spend my nights surfing porn and emailing the best photos I find to my friends, but I cannot prove that I had the consent of the person represented to send that image, am I committing a crime? And, moreover, how does one know if they can be saved by subsection (c) — i.e. how does one determine if a pornographic photo was consented to for commercial purposes? (Most images lack any identifying origin). Amateur pornography (and nude self-expression/artistic work) may not be commercial in nature; so, if my neighbor is a free spirit and loves to mail me artistic nude photos taken consensually by her friend, am I committing a crime if I photocopy the picture (reproduce it) for my own personal use (without her consent)? 

(3) Also, I saw an amendment to the bill proposing that “fine art” be exempt from the statute. This makes sense because as the language stands, displaying nude paintings of anyone without their consent runs afoul of the existing language. But, even exempting fine art, if I create a pencil sketch of a female nude model (arguably a representation of her without a statutory definition of “representation”) and show it at an art exhibit without her consent, is that a violation? (this example supposes, correctly, that no one would consider my sketches (or paintings) as “fine art”). The hypo is equally applicable to a photo I suppose. 

(4) One last set (these are less about Wisconsin’s statute and more about the enforcement of any such "revenge porn" statute). What if the nude person in the representation is now dead? If my girlfriend dies in a car accident with her secret lover and, to get back at her for the infidelity, I post all of our intimate photos online, is that a crime? (I think I lean towards yes, but how does one prove she did not consent?) Alternatively, if my grandmother leaves me a nude photo of her in her will and I post it to my Facebook page, crime? (My grandmother's consent is impossible to prove; however, can my grandfather's abhorrence at my conduct serve as the predicate for a violation of the Wisconsin statute?).

Do not take my criticism of the Wisconsin proposal as a condemnation of statutes like this. But, criminalizing any conduct requires a statute narrowly drafted to achieve the overarching goal without: (1) criminalizing conduct not contemplated by the legislature (see, e.g., the CFAA); (2) infringing on protected First Amendment rights; and (3) punishing conduct that misses the "revenge" part of "revenge porn."

The last point is worth elaborating on. "Revenge" is defined in a variety of ways,  see, e.g., the Free Dictionary depending on the context. But, the substance of the word "revenge" is not hard to discern when it is used as a weapon against another; for example, "revenge, reprisal, retribution, [and] vengeance suggest a punishment or injury inflicted in return for one received. [R]evenge is the carrying out of a bitter desire to injure another for a wrong done to oneself or to those who are close to oneself: to plot revenge for a friend's betrayal." Id. Legislatures took notice of "revenge porn" after tragic events and horrific stories popped up on the internet about individuals (often female) being tormented by ex-lovers wishing to exact punishment for real or perceived harm. The nationwide legislative focus on a this sociological phenomenon is, to be sure, quite encouraging. 

However, Wisconsin's current proposal reinforces the well-founded fear of many (including organizations like the EFF and ACLU) that statutes intended to cure "revenge porn," without careful drafting, might overreach and infringe on First Amendment rights. My overarching fear is that legislative bodies will get lost in the morality of pornography (or personal conceptions of permissible social interactions), instead of focusing on the "easy win"  a narrow statute intended to prevent revenge porn's abhorrent invasion of privacy might provide. 

Additionally, notwithstanding the considerations above, it cannot be ignored that a digital photograph published to the internet exists long after the subject of the photo is gone. Digital photos can be cached, preserved as screenshots, or archived by third-party sites like the Wayback Machine. Part of the "revenge" inherent in revenge porn is that the person possessing the nude/pornographic picture is well aware of the above considerations and ignores them as part of the intent to exact revenge.

That said, I must admit that I disagree with the California revenge porn statute; I do not understand requiring something more than "intent" (i.e., an intent to harm as the CA statute reads) to criminalize "revenge porn." While the mens rea for revenge porn might persist as a point of contention, my take is that: an intent to harm rquirement is unnecessarily restrictive; but, at the other end of the spectrum, no scienter requirement (as is the case in Wisconsin AB462) is impermissibly overbroad (see supra).

I don't have all the answers, but my suggestion is that the Wisconsin Legislature look to the wording Professor Franks has proposed as a method to revise the current proposal.

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Wisconsin Supreme Court hears oral arguments in cell phone tracking case, State v. Tate

On October 9th, the Wisconsin Supreme Court heard oral arguments in State v. Tate, a case addressing whether the lower court properly denied defendant's motion to suppress evidence from a warrant that allowed police to track the location of the defendant's cell phone.

The defendant frames the issue of the case in his brief (attached below) as follows

Police obtained a court order to track a cell phone because the person in possession of the phone was suspected of a homicide. However, neither the location  data itself, nor the phone’s location, nor the location of the person in possession of the phone constituted evidence of a crime. As one federal district court recently described the scenario, police asked “to use location data in a new way—not to collect evidence of a crime, but solely to locate” a suspect. MD Prospective, infra, 849 F. Supp. 2d 526, 530 (D. Md. 2011).

Issues: Was there statutory authority for the Order? Did the Order violate the State and Federal Constitutions? The lower courts concluded that the Order was permissible.

The State's response (attached below) frames the issue as follows

Issues: Was the judicial order authorizing the police to track a cell phone belonging to defendant-appellant-petitioner Bobby L. Tate a valid search warrant?

Here are links to the Wisconsin Court of Appeals decision, the Defendant's Brief, the State's Response, and the Defendant's Reply.

Additionally, here is a link to the audio of the oral arguments (.WMA)

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Defendant argues WI child porn law unconstitutional; if you're texted CP and open it, are you guilty of possessing CP?

Could someone texting you child porn, a text you unwittingly open, get you charged with a felony? Also, is it fair to charge adult males with child porn possession but not the underage females that texted the images to them, if they both technically possess child pornography? The case below raises both issues.

In State v. Perino, No.'s 2012-CF-0217, 2012-CM-0116 (Wis. Cir. Ct. filed Jan. 18 & Feb. 23, 2012) the defendant is charged with two counts of possessing child pornography (2012-CF-0217 - link has case history) and two counts of sex with a minor over age 16 (2012-CM-0116). In March of 2013, the defendant filed three motions to dismiss based on the following: (1) that the charged statute (Wis. Stats. § 948.12, see infra) is unconstitutionally vague and overbroad, as applied; (2) that the images are not "lewd" as required by the statute; and, (3) that the prosecutor is selectively prosecuting the case.

Copies of the Wisconsin Circuit Court documents:

1. Defendant's Motions
2. Prosecutor's Responses

The defendant was later indicted in federal court, as well, where he was "charged . . . with one count of producing child pornography and [the indictment] refers to two victims A and B. Four other counts appear to refer to the same former student in the state charges, and a sixth count seeks forfeiture of Perino's computers and cellphone." (Vielmetti, infra). You can find the indictment, here: E.D. Wisconsin Perino Indictment

State of Wisconsin Case

Wis. Stat. § 948.12 states:

948.12  Possession of child pornography.
(1m) Whoever possesses, or accesses in any way with the intent to view, any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct under all of the following circumstances may be penalized under sub. (3):
     (a) The person knows that he or she possesses or has accessed the material.
     (b) The person knows, or reasonably should know, that the material that is possessed or accessed contains depictions of sexually explicit conduct.
     (c) The person knows or reasonably should know that the child depicted in the material who is engaged in sexually explicit conduct has not attained the age of 18 years.

Bruce Vielmetti has a good synopsis of the case in his Journal-Sentinel article - Lawyer wants girl charged for nude photos she sent to teacher:

The attorney for a former Hales Corners teacher facing charges he had sex with a female student has asked a judge to charge the girl with distributing child pornography - for sending nude photos of herself to the teacher.
...
Craig Perino was charged in Racine County in January 2012 with two counts of sex with child 16 or older, both misdemeanors. According to the complaint, he and the girl had encounters last year at his home in Waterford that involved drinking and intercourse.
A month later, prosecutors added two counts of possession of child pornography, both felony offenses, after nude photos of the girl were found on Perino's phone and computer. He has pleaded not guilty to all the charges.
…
Perino's attorney, John Birdsall, has moved to dismiss the child pornography charges on several grounds. He argues the statute is unconstitutionally vague and overbroad because it makes anyone who might open and view an unsolicited texted or emailed image of child pornography subject to criminal prosecution. 

Birdsall also argues that the texted photos, while nude, are not "lewd" under the statute. 

Finally, Birdsall asks that the charges be dismissed because they represent selective prosecution. His motion notes that the girl was 17 when she reported her sexual encounters with Perino and is 18 now. If the prosecutors believe the images amount to child pornography, the girl should be charged as an adult with producing, distributing and possessing them, the motion states.
…
Refusing to charge the girl, Birdsall argues, amounts to an admission by prosecutors that the images are not in fact lewd under the Wisconsin statute and therefore don't support the child porn charges against Perino.
…
In his responses to Birdsall's motions, Assistant District Attorney Robert Repischak argued that the issues were raised too late, that the question of whether the photos are lewd is one a jury should decide, and that Perino's constitutional challenge relies on hypothetical situations that differ from his own. 

"The defendant seemingly forgets" that he told an investigator he had stored images on his employer's computer and deleted them once he learned of the investigation and that he "clearly . . . was not an unwitting recipient of the images at issue," Repischak said in his written response to the motions.

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Breaking: WI Sup Ct upholds GPS tracking, dissent alleges 4th Amendment "trespass" occured

State v. Brereton has been released, today. A PDF of the decision can be found: here. I will have analysis up in a bit, but here is some pertinent text from the majority's holding:

First, we conclude that the seizure of Brereton's vehicle was supported by probable cause that the vehicle was, or contained, evidence of a crime, and was therefore permissible under the Fourth Amendment.  The seizure was supported by witnesses' reports that a car matching the make, model, and license plate number of that particular vehicle had been seen at the locations of recent burglaries in the area.  Additionally, after officers lawfully stopped Brereton and his co-defendant Brian Conaway in the suspect vehicle, they discovered that the vehicle identification number (VIN) did not match the license plate, and that the occupants of the vehicle were notably similar to the two men seen at multiple recent burglaries.  Accordingly, the three-hour seizure of Brereton's vehicle, whereby officers were able to install the GPS device, did not constitute an unreasonable seizure under the Fourth Amendment, as applied to automobiles.  Moreover, in light of Brereton's Fourth Amendment interest in avoiding government usurpation of his property for the purpose of conducting surveillance on him, the officers' decision to obtain a warrant prior to conducting the GPS search was proper. 

¶3   We also conclude that the technology used in conducting the GPS search did not exceed the scope of the warrant allowing GPS tracking of Brereton's vehicle.  Judge Carlson issued the warrant based on the probable cause set forth through the facts recited in a detective's affidavit.  The affidavit and warrant's language contemplated the installation of a GPS device that would track the vehicle's movements.  That the device provided officers with real-time updates of those movements did not alter the kind of information to be obtained under the warrant, or the nature of the intrusion allowed.  Therefore, the officers' execution of the warrant was not unreasonable.  Accordingly, we affirm the decision of the court of appeals.

Judge Abrahamson's dissent states, inter alia, that:

I conclude that in the present case, as in Jones, the State committed a common law trespass.  I further conclude that the trespass (seizure) was not reasonable under the circumstances of the present case.[28]  The majority explains that to determine the reasonableness of a seizure, a court must balance the public interest in investigating and thwarting crime against the private interests in maintaining dominion over one's possessions.  Majority op., ¶28.  Unfortunately, the majority does not conduct this balancing test.    

¶70  In applying the test of objective reasonableness to the seizure and its continuation, I conclude that under the circumstances of the present case, the State's dominion over the defendant's vehicle was prolonged beyond a reasonable time and was not reasonably related in scope to the circumstances which, according to the majority opinion, justified the initial and continuing seizure of the vehicle. 

... 

¶84  All told, this case needs far more careful discussion and analysis by the majority opinion of the State's invasion of the defendant's possessory and privacy interest in the vehicle and the defendant's privacy interest with respect to surveillance of the movements of the vehicle before a reader is persuaded that the State has overcome the presumption that the warrantless seizure of the vehicle is a violation of the Fourth Amendment.
 

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Another post-Jones GPS case on the calendar this week

This week, on September 6th, the Wisconsin Supreme Court is faced with a GPS tracking case - State v. Brereton. The issues are unique, and include a pre-textual stop to install the GPS tracking, seizure of the car, lies by law enforcement to conceal the process of installing the GPS tracker, and the interaction of GPS tracking with the holding of the United States Supreme Court in United States v. Jones.

I encourage you to read the case briefs. I am cited in the AG's response brief for a point that I noted as relevant but was certainly not the crux of my piece. As a personal note - I would side with the defendant in this case, but the reference to my piece is germane, nonetheless.  The AG cites me for the concept that it should not matter whether the GPS tracking is real-time or the GPS information must be downloaded with human intervention. In footnote 145 I state: "Judge Bell in United States v. Walker forecloses this GPS technology distinction in a notable way: 'That the officers here chose to use a specifically engineered GPS tracking device rather than merely duct-taping an iPhone to Defendant's bumper is of little moment. The technology in this case is in general use….' 771 F. Supp. 2d 803, 811 (W.D. Mich. 2011)." Clearly a reference to Kyllo, although I find it unconvincing.

The Defendant's Brief can be found here.

The Wisconsin Attorney General's Response Brief can be found here. (I am cited on pg. 33).

The Defendant's Reply Brief can be found here.

My law review article can be found in its entirety, here: Car-ving Out Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction

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