Despite their normally divergent ideological dispositions, the nine justices of the U.S Supreme Court took a decidedly conservative position this week, putting into place what we hope will be the first of many curbs against the escalating use of invasive satellite tracking technology as a replacement for old fashioned detective work.
While it was (pleasantly) surprising to hear the court invoke George Orwell’s 1984 no less than six times during oral arguments, it’s even more extraordinary that it ruled unanimously to reverse the conviction of a drug dealer. The Fourth Amendment, after a couple of decades of getting kicked around and stomped on in the zealous spirit of “zero tolerance” and “homeland security,” has been given a fresh blast of adrenaline, emerging invigorated and relevant again.
At issue is whether the police had the right to secretly affix a GPS unit to the undercarriage of a car owned and driven by Antoine Jones, a suspected drug kingpin in the sights of the FBI and local District of Columbia police detectives, without a valid warrant. Investigators had been granted a warrant to track Jones with the device, but it expired. A month of this surveillance led to his arrest, however, and he was eventually sentenced to life in prison, convicted in January 2008 of one count of conspiracy to distribute and to possess with intent to distribute five or more kilograms of cocaine and 50 or more grams of cocaine (you see, we are winning the War on Drugs!)
His lawyers appealed, arguing that his Fourth Amendment right against unreasonable search and seizure was violated because the warrant wasn’t valid. The U.S federal court of appeals in DC granted his appeal and reversed Jones’ conviction. The government, arguing that an individual has no reasonable expectation of privacy driving down the street in his vehicle, and that police tracking him with a GPS is no different than following him in their own cars, or walking behind him on the street, insisted the police didn’t need the warrant in the first place.
Not so, said conservative Justice Antonin Scalia, writing the majority opinion (.pdf):
The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. …
We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a “search.” …
It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.
By focusing on personal property and trespass, however, Scalia and four other justices (Roberts, Kennedy, Thomas and Sotomayor) limited the scope of the ruling, declining (as stated in the majority opinion, and in Sotomayor’s separate opinion) to address the issue of “reasonable expectation of privacy,” which would have called into question law enforcement’s warrantless use of any GPS tracking technology, not just a physical GPS device secretly attached to cars, for long-term surveillance.
Not everyone agreed with them. The four remaining justices (Alito, Ginsburg, Breyer and Kagan), although holding together on the ruling, signed their own concurring Minority opinion, stating that it was Jones’ “reasonable expectation of privacy” that was violated, that it was the month-long monitoring of his every move that constituted “the search,” not the surreptitious placement of the device on his car. By making this a clear privacy issue, they suggested, the court might have thrown up new legal hurdles against the use of other long-term electronic surveillance that does not involve tampering with personal property.
Instead, wrote Justice Samuel Alito, who wrote the Minority’s concurring opinion, police might shift to GPS surveillance that involves “non-trespassory” techniques in order to avoid legal trouble. “If long-term monitoring can be accomplished without committing a technical trespass—suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car—the Court’s theory would provide no protection.”
In other words, as good as it is, the Majority’s ruling is too narrow. The other justices acknowledge this, and warn there will be much more to come.
Recent years have seen the emergence of many new devices that permit the monitoring of a person’s movements. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.
Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to track and record the location of users—and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States.
(And don’t forget drone technology, which local police departments have adopted from the military and are using more frequently across the country for surveillance and “security”)
“To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes,” Alito wrote, which is why it’s been falling to the courts to decide its constitutionality. Now that the highest court has weighed in on at least one case, Alito suggested it’s time that Congress set some parameters. That way, the courts do not have to address each new use of GPS tracking technology piecemeal.
The American Civil Liberties Union, happy with the overall decision, not surprisingly agreed with the minority justices on this matter.
In sum, the Court has given Congress a good, strong push. They have clearly indicated that the Fourth Amendment is implicated and that there are countless technical and legal questions related to location tracking that lawmakers need to answer. The Jones decision creates substantial uncertainty for prosecutors about when they need a warrant – something they will certainly want Congress to resolve. Given this case it is hard to imagine a careful prosecutor authorizing any type of location tracking (using either GPS or cell phone information) without probable cause under the Fourth Amendment. Now it’s incumbent upon lawmakers to seize the initiative and resolve unanswered questions in the most privacy protective manner.
So, while the individual justices have different opinions on how, they still unanimously insisted the state went too far, and had violated the Fourth Amendment rights of one Antoine Jones. Together, they resolved to put some brakes on this particularly pernicious police activity, and for that, we should be grateful.
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