SCOTUS questions privacy expectations in GPS case

By Kimberly Atkins

Dolan Media Newswires

BOSTON, MA--In a case that had the justices questioning just how far the expectation of privacy extends in a world of ever-evolving technologies, the U.S. Supreme Court considered Tuesday whether the police's use of a warrantless GPS tracking device on a suspect's car violated the Fourth Amendment.

There is chance that the justices could rule broadly on the issue. For example, the Court could hold that the installation of the device did not even constitute a search, allowing the Court to skip the expectation-of-privacy analysis altogether. But at oral arguments, the justices seemed to go the opposite route, considering in detail the implications of a world where information from high-tech devices could be used by the government to track individuals' every move.

In U.S. v. Jones, police placed a GPS tracking device on the car of Antoine Jones, a nightclub owner police suspected was trafficking cocaine, as part of a larger surveillance operation that also included visual surveillance as well as a pen register and wiretap on Jones's cell phone.

Police had obtained a warrant to place the GPS device on Jones's car, but the warrant stipulated it be done within 10 days and used only in the District of Columbia. Police installed the device on the 11th day in Maryland.

Police traced Jones via the GPS device for four weeks. Information about the car's movements ultimately led police to a suspected stash house where police recovered cash, cocaine, weapons and drug paraphernalia.

During Jones's trial for conspiracy to distribute cocaine, police introduced data from the GPS tracking device, but only as it related to Jones's movement on public roads. He was convicted, and appealed.

The D.C. Circuit reversed, finding that the use of the GPS device without a valid warrant violated Jones's Fourth Amendment rights. The court denied en banc review, and the government successfully petitioned the U.S. Supreme Court for certiorari.

'Unquestionably a trespass'

At oral arguments, Deputy Solicitor General Michael R. Dreeben noted that the Court has held that individuals have no reasonable expectation of privacy in their public movements.

"What a person seeks to preserve as private in the enclave of his own home or in a private letter or inside of his vehicle when he is traveling is a subject of Fourth Amendment protection," Dreeben said. "But what he reveals to the world, such as his movements in a car on a public roadway, is not."

The justices questioned more than whether the police's monitoring of the car implicated Fourth Amendment concerns.

"I have serious reservations ... about the way in which this [device] was attached," Justice Anthony Kennedy said. "But you can get to that at your convenience."

"Mr. Dreeben, I'd like to get to it now," said Justice Antonin Scalia. "[I]t seems to me that when that device is installed against the will of the owner of the car on the car, that is unquestionably a trespass ... thereby rendering the owner of the car not secure in [his] effects against an unreasonable search and seizure."

"It may be a technical trespass," but it doesn't raise Fourth Amendment problems, Dreeben said.

Justice Samuel Alito had broader concerns.

"It seems to me the heart of the problem that's presented by this case and will be presented by other cases involving new technology is that ... it's now so simple to amass an enormous amount of information about people," Alito said. "I think it's possible now in many instances for law enforcement to monitor people's movements on public streets without committing a technical trespass. So how do we deal with this?"

Dreeben said the remedy for keeping a check on the use of such information is legislation, but Justice Stephen Breyer still had questions about the privacy implications.

"If you win, you suddenly produce what sounds like '1984,'" according to Jones's brief, Breyer said. "I understand they have an interest in perhaps dramatizing that. But it still sounds like it. And so what protection is there, if any?"

"This case does not involve 24-hour surveillance of every citizen of the United States," Dreeben said. "It involves following one suspected drug dealer as to whom there was very strong suspicion."

'Grave abuse of individual liberties'

Stephen Leckar, special counsel at the Washington office of Shainis and Peltzman, argued that the "police have the capacity with GPS to engage in grave abuse of individual and group liberties."

"I'm told that if somebody goes to London, almost every place that person goes there is a camera taking pictures, so that the police can put together snapshots of where everybody is all the time," noted Justice Elena Kagan. "So why is this different from that?"

"That's pretty scary," Leckar said. "I wouldn't want to live in London under those circumstances."

"Well, it must be unconstitutional if it's scary!" Justice Antonin Scalia quipped, drawing laughter.

Breyer remained serious.

"In fact, those cameras in London actually enabled them [to] track the bomber who was going to blow up the airport in Glasgow and to stop him before he did," he said. "So there are many people who will say that that kind of surveillance is worthwhile."

Leckar said the instant case was different "because you have a physical invasion of property."

"'The existence of a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated,'" Breyer said, reading the text of a previous Court ruling. "The real issue here is whether this is reasonable."

Scalia jumped in again.

"All this discussion ... seems to me leaps over the difficult part of your case," Scalia said. "The reasonableness requirement [does] not take effect unless there has been a search. And our cases have said there is no search when you are in public."

Scalia said that if police had visually tracked Jones's movement by following him for four weeks, no privacy implications would have been raised. "So why is this an invasion of privacy?" Scalia asked.

"Because it is a complete robotic substitute," Leckar said. "It's not a [human] tail."

"Technology is changing people's expectations of privacy," said Alito. "Ten years from now 90 percent of the population will be using social networking sites, and they will have on average 500 friends and they will have allowed their friends to monitor their location 24 hours a day, 365 days a year, through the use of their cell phones."

"Society doesn't expect the police" to use that information, Leckar said.

"You know, I don't know what society expects and I think it's changing," Alito said. "Technology is changing people's expectations of privacy."

A decision from the Court is expected later this term.

Published: Thu, Nov 17, 2011

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