A Decision Is Rendered In GPS Tracking Case, But With No Decisiveness
They have done away with the nightmarish scenes from George Orwell’s 1984. They have done away with the unnerving language of insidious dangers around the corner. They have even done away with hypothetical scenarios involving round-the-clock surveillance of each other. The decision that the nine justices on the United States Supreme Court reached last week in United States v Jones, 132 S Ct 945 [US v Jones], is a move in the right direction. But it is too small, too trepidatious of a step.
US v Jones is hailed as one of the most important Fourth Amendment decisions of the decade. Yet it is certainly not the final word on the nexus formed among among privacy, technology and search and seizure. Without a warrant, police in Maryland had attached a GPS tracking device on the accused’s car for 28 days, which emitted information about the accused’s location every few seconds. This tracking device led police to a warehouse filled with cocaine and cash. The accused, Antoine Jones, was arrested.
As I had observed in late November, it was not clear by the end of the oral hearings which way the judges were going to side. At the end, a unanimous court decided that the use of the GPS tracking device to be unconstitutional. Namely, they agreed that the accused’s constitutional right – his Fourth Amendment right to be guarded from “unreasonable searches and seizures” – was infringed upon. That was the end of their agreement.
In usual fashion, the Court splintered, with Justice Scalia leading one contingency and Justice Alito leading another. Justice Sotomayer cast the deciding vote, opting for the ‘minimalist approach’ advocated by Justice Scalia. Even though she preferred the narrow interpretation, she also had sympathy for the “incisive” conclusion drawn by Justice Alito. Rather humorously, one critic counts 4.5 votes for Justice Scalia and 4 votes for Justice Alito.
Given the far-reaching implications of this case for police officers and government officials, it was disappointing that the Court failed to display any decisiveness. While Justice Scalia seems to be most investigated in the question of whether this tracking device constitutes a “search” under the Fourth Amendment, one could argue that his attention is misdirected, or at least unnecessarily narrow. That is, the fulcrum of the case is the increasing tension between new technology and our expectation of privacy: what is a “reasonable” expectation of privacy in a world in which cell phones have a GPS locator and public spaces are often camera-equipped? Courageously, Justice Alito tried to tackle this thornier issue.
Justice Scalia, and the three judges that sided with him, asserts at the end that: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.” He concludes that the accused’s Fourth Amendment right was infringed by the installation of the GPS tracking device by the police.
While agreeing with the ultimate decision, Justice Alito faults Justice Scalia for applying eighteenth century legal concepts to the twenty-first century. In particular, the minority takes issue with Justice Scalia’s “trespass” analogy. One cannot help but find the Scalia-Alito sparring match comedic. Justice Scalia considers the use of GPS tracking devices by the police analogous to a constable who might conceal himself “in the target’s coach in order to track its movements.” Justice Alito retorts: “this would have required either a gigantic coach, a very tiny constable, or both — not to mention a constable with incredible fortitude and patience.” (The last part is a reference to the fact that this case involved 24-hour surveillance for 28 days.)
Justice Alito is less interested in whether the GPS device constitutes a search. One of the strengths, and simultaneously one of the weaknesses, of his decision is that it puts much weight on time. There is little doubt that Justice Alito would take issue with any kind of permanent surveillance scheme, even if it is not physically intrusive. He writes:
In some locales, closed-circuit television video monitoring is becoming ubiquitous… 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.
Turning to the case at hand, Jusice Alito concludes that, “We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the four-week mark.”
Justice Sotomayer would have cast her vote in favour of Justice Alito if he had meaningfully addressed the issue of voluntary disclosure. “It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” she states in a somewhat ominous way. She puts her finger on a key issue, our digital footprint. Today, our Internet browsers document every purchase we make, every URL we visit and every message we send. Despite the fact that we put ourselves out there on the Internet everyday, she wonders out loud whether it would ever be acceptable for the government to track our presence online for a day, a week or a month.
The Final Score
From these decisions, it becomes increasingly clear that the government may not really be the losers in this case. None of the justices sided with the government. Yet, they leave open critical questions. Justice Scalia’s “trespass” theory seems to hinge on physical intrusion. Here, the police affixed a GPS tracking device to the accused’s car. What if the police, through a remote location, taps into the car’s pre-existing GPS device? Would Justice Scalia and the majority deem to not constitute a search, and thereby permissible?
Justice Alito’s opinion may sound more appealing because it is more grounded in the realities of life in the twenty-first century. Despite the fact that our cell phones can track our location, we still have a reasonable expectation of privacy when it comes to round-the-clock police surveillance, according to the minority.
What is not clear with Justice Alito’s position is whether he would accept shorter-term police surveillance. The minority does not consider the mere installation of a GPS tracking device on a suspect’s vehicle to be a search. Only after a certain point in time does it tip into Fourth Amendment territory. What if the police did not monitor Antonin Jones for four weeks, but rather one week? What if they monitored him for only four hours each day? In either of those scenarios, Justice Alito and the minority might deem it not to be a search that requires a warrant.
United States v Jones puts some important questions on the table, especially as they relate to our increasingly digital world. And there is a sense that larger changes are needed (i.e., voluntary information disclosure to third-parties). What may be underestimated, however, is that more complicated, more litigious questions remain.