GPS TRACKING & THE LAW – UK ONLY

One of the techniques routinely used by investigators in the 21st century is the GPS tracker. It is used primarily to aid surveillance and to save money. Trackers were prohibitively expensive and they were big and heavy units. The prices of units have now come down to an acceptable level and a very good example of an inexpensive tracker is the Prime which currently costs under £100.

This advanced GPS Prime is currently the world’s smallest real-time tracker, and now, with enhanced signalling, it pulls up the target’s location in seconds. Designed to make GPS Tracking viewing easy, the tracking solution gives you 24/7 access to the tracker’s information, all laid out on simple, control panel. With the Prime, you’re in control of what you see, and how you see it.

The web control panel has been designed especially for ease of use and its functionality is second to none. The panel allows you to; change the frequency interval when you want to locate your Prime, set a 360 degree virtual perimeter around an area known as a Geo-fence, when your tracker breaks this barrier either entering, exiting or both it will send you an SMS to your mobile phone notifying you.

What is a GPS Tracker?

A GPS tracking unit is a device that uses the Global Positioning System to determine the precise location of a vehicle, person, or other asset to which it is attached and to record the position of the asset at regular intervals.

The recorded location data can be stored within the tracking unit, or it may be transmitted to a central location data base, or internet-connected computer, using a cellular (GPRS or SMS), radio, or satellite modem embedded in the unit. This allows the asset’s location to be displayed against a map backdrop either in real time or when analysing the track later, using GPS tracking software

Types of GPS trackers

Usually, a GPS tracker will fall into one of these three categories, though most smartphones, being GPS Phones, can work in all these modes, depending on which mobile applications are installed:

Data loggers: A GPS logger simply logs the position of the device at regular intervals in its internal memory. Modern GPS loggers have either a memory card slot, or internal flash memory and a USB port. Some act as a USB flash drive. This allows downloading of the track log data for further analyzing in a computer.

Data Pushers is the most common type of GPS tracking unit, used for asset tracking, personal tracking and Vehicle tracking system. Also known as a GPS beacon, this kind of device pushes (i.e. “sends”) the position of the device as well as other information like speed or altitude at regular intervals, to a determined server, that can store and instantly analyse the data.

Most 21st-century GPS trackers provide data “push” technology, enabling sophisticated GPS tracking in covert tracking environments

The tracking device is most often covertly deployed on the vehicle. It allows collection of data, which is relayed to the GPS tracking server, where it is available for viewing, in most cases via a website accessed over the internet, where activity can be viewed live or historically using digital maps and reports.

GPS tracking systems are often configured to transmit location and telemetry input data at a set update rate or when an event (door open/close, auxiliary equipment on/off, geofence border cross) triggers the unit to transmit data.

Data Pullers

GPS data pullers are also known as GPS transponders. Contrary to data pushers, that send the position of the devices at regular intervals, these devices are always-on and can be queried as often as required. This technology is not in widespread use, but an example of this kind of device is a computer connected to the Internet and running GPSD.

These can often be used in the case where the location of the tracker will only need to be known occasionally e.g. placed in property that may be stolen, or that does not have constant source of energy to send data on a regular basis, like freights or containers.

Data Pullers are coming into more common usage in the form of devices containing a GPS receiver and a cell phone which, when sent a special SMS message reply to the message with their location.

When are Trackers used?

Trackers are typically used when aiding surveillance or in gathering Intel on the SoE. Where the client does not have a large budget for a large team of investigators, the tracker can often be utilised as an inexpensive alternative. It allows a lone investigator to follow the SoE from a distance and to never lose the target. However as sometimes happens, the SoE can sometimes do unexpected things like not use his car and therefore the tracker becomes useless.

Using the tracker as Intel is one of the best ways to target appropriate surveillance resource. For example, if the tracker shows that the car being tracked leaves work early and arrives at a hotel every Thursday afternoon, the investigator can target the SoE on those Thursday afternoons, wait at the hotel for him to arrive and acquire the so called “money shot” with less expense and stress.

Covert Deployment and Retrieval of Trackers

GPS TrackingIt is important when considering deployment of a tracker that you do a bit of research on the vehicle on which it is to be deployed. It almost goes without saying that you need to know the full registration number of the vehicle, make, model and colour too. Armed with this knowledge, it makes sense to visit a used car showroom that has the same model car for sale. Under the pretence of looking at the car in order to purchase it, get under it and determine where the best place is to deploy the tracker. Alternatively, become a member of WAPI’s e-legal-gathering forum for PI’s. In the Vault of that forum, there is a database of cars and the best place to deploy trackers on each car.

Unlike the movies which show the fictional PI deploying trackers inside the wheel arch of the vehicle or under the body of the car. In fact the best place to deploy the tracker is inside the rear bumper of the car. The tracker is usually placed inside a pouch with a strong magnet which will adhere to any metal component of the bumper. Since most bumpers are made of plastic, the tracker will “see” the sky and will therefore have good sight of line to the satellites and GPS towers.

Should the bumpers be impossible to use then the tracker must be placed farther under the car or tied to any strut but it is important that the tracker is not visible and that it does not interfere with the functioning of the vehicle itself.

When deploying a tracker, it is a good idea to have a pound coin in your hand. Should you be compromised while under the vehicle you can easily deflect suspicion by producing the coin and saying that you had dropped it and it rolled under the car.

You must make sure that the magnets are properly put in place so that the tracker adheres to the car. Failure to do this can result in the loss of the tracker at the 1st bump in the road.

It is also a good idea to have a very small LED torch which you can hold in your teeth while under the vehicle.

It normally takes seconds to deploy and retrieve a tracker as long as you have done your research!

Is it legal to use GPS trackers?

The short answer is YES!  The long answer is it depends on what you use it for.

It is quite clear that if you combine client instructions (written or digitally transmitted) that identify a person and a vehicle and then you deploy any type of tracker, the information gathered by the tracker becomes personal data as defined by the Data Protection Act 1998.

The document “What is personal data? – A quick reference guide” published by the ICO makes clear that data that identifies a living individual is personal data.

Can a living individual be identified from the data, or, from the data and other information in your possession, or likely to come into your possession? If yes then its personal data.

Identifiability – An individual is ‘identified’ if you have distinguished that individual from other members of a group. In most cases an individual’s name together with some other information will be sufficient to identify them. Simply because you do not know the name of an individual does not mean you cannot identify that individual. The starting point might be to look at what means are available to identify an individual and the extent to which such means are readily available to you.

NOTE: It is clear that a client’s instructions will identify the subject of enquiry.

Does the data ‘relate to’ the identifiable living individual, whether in personal or family life, business or profession?

Meaning of ‘relates to’ – Data which identifies an individual, even without a name associated with it, may be personal data where it is processed to learn or record something about that individual, or where the processing of that information has an impact upon that individual. Therefore, data may ‘relate to’ an individual in several different ways.

Is the data ‘obviously about’ a particular individual?

Data ‘obviously about’ an individual will include his medical history, criminal record, record of his work or his achievements in a sporting activity. Data that is not ‘obviously about’ a particular individual may include information about his activities. Data such as personal bank statements or itemized telephone bills will be personal data about the individual operating the account or contracting for telephone services. Where data is not ‘obviously about’ an identifiable individual it may be helpful to consider whether the data is being processed, or could easily be processed, to learn, record or decide something about an identifiable individual. Information may be personal data where the aim, or an incidental consequence, of the processing, is that you learn or record something about an identifiable individual, or the processing could have an impact on, or affect, an identifiable individual.

NOTE: Data from a Tracker would be to identify the individual or his activities. It is therefore personal data within the meaning of the DPA.

Are We Allowed To Gather Personal Data?

All private investigators or any individual who wishes to gather personal data MUST BE registered with the ICO and have a DPA number. It is a criminal offence to process data and not have a DPA number.

What Other Laws Might We Break By Tracking Cars?

Trespass: It may be a civil trespass to deploy a tracker onto a car not belonging to your client or to yourself. But in the OSC’s annual inspection, the OSC’s Chief Surveillance Commissioner Sir Christopher Rose stated “putting an arm into a wheel arch or under the frame of a vehicle is straining the concept of trespass“.

However to enter the private land of anyone in order to deploy a tracker is clearly a trespass which is a civil tort.

Harassment & Stalking: Surveillance in all of its forms can sometimes be misinterpreted by the public as stalking. There is no legal definition of ‘stalking’. Neither is there specific legislation to address this behaviour. Rather, it is a term used to describe a particular kind of harassment. Generally, it is used to describe a long-term pattern of persistent and repeated contact with, or attempts to contact, a particular victim.

Examples of the types of conduct often associated with stalking include: direct communication; physical following; indirect contact through friends, work colleagues, family or technology; or, other intrusions into the victim’s privacy. The behaviour curtails a victim’s freedom, leaving them feeling that they constantly have to be careful.

In many cases, the conduct might appear innocent (if it were to be taken in isolation), but when carried out repeatedly so as to amount to a course of conduct, it may then cause significant alarm, harassment or distress to the victim

If the subject of enquiry is aware of the tracking, then this may amount to harassment under the Prevention of Harassment Act 1997. There is a case at the Royal Courts of Justice where a private investigator is being sued under this act for the use of trackers.

Property Interference: This refers to RIPA or Regulation of Investigatory Powers Act 2000. The Home Office published a document entitled “Covert Surveillance and Property Interference, Revised Code of Practice, Pursuant to section 71 of the Regulation of Investigatory Powers Act 2000” where it suggests in Chapter 7, page 61 that;

General basis for lawful activity

7. 1 Authorisations under section 5 of the 1994 Act or Part III of the 1997 Act should be sought wherever members of the intelligence services, the police, the services police, Serious and Organised Crime Agency (SOCA), Scottish Crime and Drug Enforcement Agency (SCDEA), HM Revenue and Customs (HMRC) or Office of Fair Trading (OFT), or persons acting on their behalf, conduct entry on, or interference with, property or with wireless telegraphy that would be otherwise unlawful.

7. 2 For the purposes of this chapter, “property interference” shall be taken to include entry on, or interference with, property or with wireless telegraphy.

Example: The use of a surveillance device for providing information about the location of a vehicle may involve some physical interference with that vehicle as well as subsequent directed surveillance activity. Such an operation could be authorised by a combined authorisation for property interference (under Part III of the 1997 Act) and, where appropriate, directed surveillance (under the 2000 Act). In this case, the necessity and proportionality of the property interference element of the authorisation would need to be considered by the appropriate authorising officer separately to the necessity and proportionality of obtaining private information by means of the directed surveillance.

This can be interpreted to mean that placing a tracker on a vehicle without the consent of the owner is illegal unless you obtain authorisation from the Surveillance Commissionaire under the RIPA 2000 laws. Since as private investigators we cannot obtain such authorisations, it is therefore illegal property interference.

Another interpretation is that it is illegal to do so IF you are acting under the instruction of a public authority and you do not obtain authorisation. The legislation makes no mention of property interference for anyone else. THEREFORE this does not apply to PIs!

The second interpretation is the valid one. We have had advice from two different lawyers on this and both are in agreement that there is no legislation in place that deals with the deployment of trackers in a criminal sense except RIPA 2000 and that RIPA 2000 ONLY applies to those agencies and persons mentioned in it.

Conclusions

It is possible that the civil offence of trespass is committed if the vehicle is on private property when the tracker is deployed.

It is also possible that if the subject of enquiry becomes aware of the tracker, this may amount to harassment under the Prevention of Harassment Act 1997 if they pursue a course of conduct

a)    Which amounts to harassment of another, and

b)    Which he knows or ought to know amounts to harassment of the other.”

In our opinion the use of GPS Trackers is not illegal and that no criminal offenses are committed in the deployment of such resources.

NOTE: If you want to know more about GPS Trackers, please get in touch via our Surveillance Services page.