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Supreme Court To Rule On Warrentless GPS Tracking

In its upcoming term, the Supreme Court will hear argument in what promises to be one of the most important 4th Amendment cases in years. It deals with the question of whether police can use GPS technology to track people without first having obtained a warrant:

The Supreme Court is about to do just that. In November, it will hear arguments in United States v. Jones, No. 10-1259, the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?

Their answer will bring Fourth Amendment law into the digital age, addressing how its 18th-century prohibition of “unreasonable searches and seizures” applies to a world in which people’s movements are continuously recorded by devices in their cars, pockets and purses, by toll plazas and by transit systems.

The Jones case will address not only whether the placement of a space-age tracking device on the outside of a vehicle without a warrant qualifies as a search, but also whether the intensive monitoring it allows is different in kind from conventional surveillance by police officers who stake out suspects and tail their cars.

“The Jones case requires the Supreme Court to decide whether modern technology has turned law enforcement into Big Brother, able to monitor and record every move we make outside our homes,” said Susan Freiwald, a law professor at the University of San Francisco.

The case is an appeal from a unanimous decision of a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, which said last year that the government was simply seeking too much information.

“Repeated visits to a church, a gym, a bar or a bookie tell a story not told by any single visit, as does one’s not visiting any of those places in the course of a month,” wrote Judge Douglas H. Ginsburg.

He added: “A person who knows all of another’s travel can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”

The issue has been pending in the Federal Courts for a few years now, and the results have come down on both sides of the aisle:

In April, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last.”

Last month, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn turned down a government request for 113 days of location data from cellphone towers, citing “Orwellian intrusion” and saying the courts must “begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

(…)

Federal appeals courts in Chicago and San Francisco, on the other hand, have allowed the police to use GPS tracking devices without a warrant. The police are already allowed to tail cars and observe their movements without warrants, those courts said, and the devices merely allow them to do so more efficiently.

Judge Richard A. Posner, writing for a unanimous three-judge panel in the Chicago case, did caution that institutionalized mass surveillance might present a different issue.

Some judges say that world is fast approaching.

“Technology has progressed to the point where a person who wishes to partake in the social, cultural and political affairs of our society has no realistic choice but to expose to others, if not to the public as a whole, a broad range of conduct and communications that would previously have been deemed unquestionably private,” Magistrate Judge James Orenstein of the Federal District Court in Brooklyn wrote last year.

Writing today in The New York Times, George Washington University Law Professor Jeffrey Rosen argues that it is important that the Court rule that the 4th Amendment applies to police uses to GPS trackers, otherwise it will mean the eventual end of anonymity and privacy:

For what’s at stake in the Supreme Court case is more than just the future of GPS tracking: there’s also online surveillance. Facebook, for example, announced in June that it was implementing face-recognition technology that scans all the photos in its database and automatically suggests identifying tags that match every face with a name. (After a public outcry, Facebook said that users could opt out of the tagging system.) With the help of this kind of photo tagging, law enforcement officials could post on Facebook a photo of, say, an anonymous antiwar protester and identify him.

There is also the specter of video surveillance. In 2008, at a Google conference on the future of law and technology, Andrew McLaughlin, then the head of public policy at Google, said he expected that, within a few years, public agencies and private companies would be asking Google to post live feeds from public and private surveillance cameras all around the world. If the feeds were linked and archived, anyone with a Web browser would be able to click on a picture of anyone on any monitored street and follow his movements.

Rosen’s argument strikes me as being correct. The idea that the police could decide to put GPS locator on someone’s car or person and follow them around surreptitiously without first having to establish probable cause in a court strikes me as being an incredibly dangerous one. If the Court allows such actions to stand, then there would be virtually no limit to what law enforcement could do with the plethora of new location technologies that are a daily part of life.

Ever since the Supreme Court’s decision in Katz v. United States in 1967, the operable question in a 4th Amendment case has been whether there is a “reasonable expectation of privacy” in the information sought or retrieved. In some cases, such as the home, the answer to that question would seem to be self-evident. In others, such as a car, courts have found that the expectation of privacy varies depending on the circumstances. In the Jones case, the government argues that there is no reasonable expectation of privacy in the location of a car on a public street, something which previous case law has said is the case. The Defendant has not filed a response yet, but it strikes me that there’s  a great degree of merit in the argument that Judge Alex Kozinski made in a dissent from the denial of an en banc hearing [PDF] in a similar case in the 9th Circuit:

By tracking and recording the movements of millions of individuals the government can use computers to detect patterns and develop suspicions. It can also learn a great deal about us because where we go says much about who we are. Are Winston and Julia’s cell phones together near a hotel a bit too often? Was Syme’s OnStar near an STD clinic? Were Jones, Aaronson and Rutherford at that protest outside the White House? The FBI need no longer deploy agents to infiltrate groups it considers subversive; it can figure out where he groups hold meetings and ask the phone company for a list of cell phones near those locations.

The panel holds that the government can obtain this information without implicating the Fourth Amendment because an individual has no reasonable expectation of privacy in his movements through public spaces where he might be observed by an actual or hypothetical observer. But that’s quite a leap from what the Supreme Court actually held in Knotts, which is that you have no expectation of privacy as against police who are conducting visual surveillance, albeit “augmenting the sensory faculties bestowed upon them at birth with such enhancements as science and technology afford[s] them.” 460 U.S. at 282. You can preserve your anonymity from prying eyes, even in public, by traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed. But there’s no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, never get confused and never lose attention. Nor is there respite from the dense network of cell towers that honeycomb the inhabited United States. Acting together these two technologies alone can provide law enforcement with a swift, efficient, silent, invisible and cheap way of tracking the movements of virtually anyone and everyone they choose. See, e.g., GPS Mini Tracker with Cell Phone Assist Tracker, http://www.spyville.com/passive-gps.html (last visited July 17, 2010). Most targets won’t know they need to disguise their movements or turn off their cell phones because they’ll have no reason to suspect that Big Brother is watching them.

I don’t think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle’s every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie  feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.

Kozinski immigrated to America from Nicolae Ceacescu’s Romania at the age of 12, one of only a handful of people to escape that regime, so he knows of what he speaks. One hopes the good Justices will have a similar perspective when they consider the ramifications of what they’re being asked to rule on.

You can track the status of the case at ScotusBlog.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Boyd says:

    While I have greater distaste of government overreach and invasion of privacy than your average American, I’m unconvinced that this type of surveillance runs afoul of the 4th Amendment. Specifically, I find Judge Kozinski’s call for the protection of “traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed” to miss the mark. He seems to be saying that the increase of efficiency of surveillance using GPS tracking makes it different from “manual” observation.

    It strikes me as a difference of degree, not one of kind, and I’ve always been skeptical of claims that a particular difference in degree results in a difference of kind. I’d love to be convinced otherwise, though.

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  2. James Joyner says:

    This is a classic slippery slope. Police don’t need a warrant to stake out a public street and follow a suspect around and this is arguably just a more convenient way of doing that. But, for reasons outlined above, this strikes me as a case of different in degree being different in kind–this is far, far more intrusive.

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  3. Boyd says:

    @James Joyner: But the only reason they can’t do this using traditional methods is because they don’t have enough people. As I said, I have a hard time accepting that accumulation of more data that’s identical in nature (i.e., a record of one’s public movements) is more intrusive, simply because there’s more data.

    IOW, I completely understand your position, Doug and James. I just find it unsupported by logic.

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  4. TheColourfield says:

    Does anyone really expect the SC to uphold the 4th? Easy 5-4 decision for the “originalists’

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  5. Shame that we don’t have Douglas Ginsberg on the Supreme Court instead of Anthony Kennedy, but hey, those Republicans can’t stand someone that has used marijuana decades ago.

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  6. @TheColourfield: You never know, you might end up with a 5-4 in the style of Kyllo v. United States.

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  7. mattb says:

    @Boyd:

    As I said, I have a hard time accepting that accumulation of more data that’s identical in nature (i.e., a record of one’s public movements) is more intrusive, simply because there’s more data.

    It’s clear that you’re coming down with Justice Black’s dissenting opinion on Katz.

    But it’s the method of gathering that is the issue. Especially if the GPS device is not easily detectable. Further, one can argue that the application of the device requires tampering with private property. It also begets a number of other sub issues including, would the government be able to regulate the sale of devices that “jammed” GPS devices (this gets us back to radar detectors).

    On a side question Boyd, do you have the same concerns about monitoring conversations? Put differently, one could argue (as Black did) that there’s no issue with placing a recorder on the outside of a phonebooth and good old fashioned ease dropping.

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  8. Boyd says:

    @mattb: To be clear, I don’t have a cavalier attitude about government intrusion into our personal lives or the “if you’re not doing anything wrong, you don’t have anything to worry about” silliness. Not that anyone accused me of that, but I just want to make it clear: I need to see a difference in kind, not just in degree, and I don’t buy James’s claim that the difference in degree in this case amounts to a difference in kind.

    With that out of the way, a GPS tracker not being easily detectable doesn’t do it for me, either. A skilled surveillance approach isn’t easily detectable, either. While I don’t much like the idea of “tampering with private property,” I have a hard time getting to that point when we’re talking about magnetically attaching the device to the exterior of the vehicle. Jammers would potentially be an effective countermeasure, but then it would necessarily interfere with the public’s free use of the electromagnetic spectrum, which is why they’re illegal. They’re nothing like radar detectors, though, and I’ve long believed that, for example, the Commonwealth of Virginia’s prohibition against them are unconstitutional.

    I’m not familiar with the Katz case or Justice Black’s opinion in that matter, but my answer to your specific question about a recorder outside a phone booth is no, that’s a public place with no reasonable expectation of privacy.

    And after all that, I go back to what I said at the beginning of this comment: I really don’t want the government intruding into our lives, but I’m struggling to find a logical (rather than emotional) reason to object to these tactics.

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  9. Franklin says:

    Excuse the noobie legal question, but why *can* you extensively surveil without a warrant? (Yes, I’m talking about “manually” watching people.)

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  10. Boyd says:

    @Franklin: I can’t give you the legal response, only the “Boyd’s logic” rationale.

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  11. @Boyd:

    It strikes me as a difference of degree, not one of kind, and I’ve always been skeptical of claims that a particular difference in degree results in a difference of kind. I’d love to be convinced otherwise, though.

    This is the classic semantic slippery slope fallacy (not to be confused with the causal slippery fallacy): that if you can’t precisely define the border between two classes, they must in fact be one class.

    As an example: it’s impossible to define a number X such that people with less than X hairs are clearly bald and people with X or more hairs are not. Therefore there’s no such thing as being bald.

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  12. My alternate legal argument:

    I’d say stuff like this should be unconstitutional, not on the basis of the fourth ammendment, but on the basis of the third ammendment.

    The purpose of the third ammendment is not, as people often imagine, written because people were annoyed about cobat bootprints on the carpetting. At the time the third was enacted, soldiers were essentially the federal police force, and the purpose of stationing a soldier in someone’s home is to keep an eye on what they’re up to and report that back to the government.

    The third should be properly seen as a ban on any sort of persistent surveillance not tied to the investigation of a specific crime.

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  13. Ebenezer Arvigenius says:

    I lack the time to delve into the constitutional details so I will just point out two things:

    1) There is no need for a difference in kind for a differentiation. Simple example: If we define malicious wounding as “causing an adverse bodily condition” then both an amputation and the unwanted removal of a single hair fulfil the definition. Nevertheless the second case would normally not even be penalized with a minimum sentence since it is commonly held that it should be below the minimum threshold for criminal persecution. Same kind, differentiated by outcome.

    2) While there indeed seems to be no difference in kind, this misses the argument. Laws and protections are always created under the paradigms of their time. Classically we differentiate the public and the private sphere. Actions in the public sphere are afforded less protection than those in the private sphere.

    But this distinction assumes natural limits on the extent of the scrutiny of the public sphere. There are two aspects to this:

    Firstly, effective laws have to be far-reaching. To use a metaphor: they are casting a wide net to ensure that all relevant acts are covered. See bodily harm above. At the same time, any society that does not want to turn into a police state will disregard the majority of small infractions. A constant surveillance violates this unspoken compact that states that the majority of small misdemeanours (social and legal) will not necessarily occur unobserved (-> public sphere) but anonymous (-> limitations on the control of the public sphere).

    Secondly (and related), classic surveillance also has a self-regulating mechanism. By requiring a large expenditure of manpower, this mechanism ensured that surveillance of the public sphere was carried out in relation to the severity of the infraction. Cheap surveillance removes this self-regulation.

    Now one may be of course of the opinion that all public behaviour is fair game, but it should be noted that this postulates a completely different society than the one envisioned by the people who first considered the public sphere in less need of protection.

    The question is: do we want to preserve the society ideal of back then (then we would have to add limitations to public surveillance just to get roughly comparable results) or do we see this as a chance to increase adherence to the law? And if we do the second, do we construct other safeguards (for example exempting certain actions from persecution) to make up for it?

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  14. Ron Beasley says:

    My objection to all of this is that the United States is becoming just like the “your papers please” tyrannys our own government used to scare us with. The available technology makes it even scarier. What ever happened to give me liberty or give me death.

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  15. tyndon clusters says:

    Why fuss with having to take the time to actually put a GPS tracker on a car when they could surreptitiously plant one in your head while knocking you out with a tranquilizer that would also render one’s memory function to stop so there is zero recollection of the event.

    Come on, you guys surely must remember that we did this in the past after we arrived from solar system N16-A4 to colonize Earth and they didn’t tell the stupid people about this…remember? OOOOPsss sorry, forget what I said.

    (With apologies to Steve Martin)

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  16. Steve in AZ says:

    One issue not addressed in all of this is: what if I find such an unauthorized tracking device on my car? Am I legally obligated to call the FBI and turn it in? Am I required to leave it alone? If I remove it and attach it to a semi-truck from Canada just for laughs and giggles, have I broken a law? If I take a hammer to it, am I liable for damages? The reason I ask is because this happened tyo a foreign student in the US and the guy tried to sell the device on E-bay and the FBI wasn’t happy about that. My view: too bad for the FBI, but what do the courts say?

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  17. Rhonen says:

    I look at it from property and contracts perspecives:

    1. If the police think my car would run better with a different brand of battery, I still wouldn’t want them to install it without my permission. So why would I let them install any other type of device on my car? HANDS OFF! For another example, police are allowed to aim microphones and videocameras at my house but they are not allowed to plant bugs or any other covert devices. The same rules should extend to all personal property — HANDS OFF my vehicle.

    2. If I contract for a service (satellite radio, cell phone, etc) that logs my location data, then such data should be used only to improve the relationship between me and the service provider. Businesses should not be obligated to share any data about individuals to the government.

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  18. Rhonen says:

    @Ron Beasley: “What ever happened to give me liberty or give me death. ”

    Police have itchy trigger fingers.

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