US v Jones: Tracking Our Expectation of Privacy
The oral argument in the case of US v Jones before the US Supreme Court started off with an odd imaginative exercise. Chief Justice Roberts asked the court to impose the allegedly unconstitutional actions of the police onto the justices of the Court, and mull over the implications of such an imposition. That is, Chief Justice Roberts posed the question to Deputy Solicitor General Michael Dreeben: “Would it constitute a “search,” if you put a GPS device on all of our cars, monitored our movements for a month?”
I think we would be up in arms if this actually happened. Imagine the police, without a warrant, monitoring the movement of Justice Ginsberg at ten-second intervals for 30 days, as she goes to and fro from the opera performances and elephant rides with Justice Scalia. (She had once taken a trip during which she and her intellectual rival on the bench, Justice Scalia, rode an elephant together.)
Yet, this scenario did happen. It involved a man, Antoine Jones, and his wife, whose Jeep was tracked by the police by a GPS device for 28 days, even though the warrant lasted only 10 days. Giving his location every ten seconds, the police were eventually led to a “stash house” in the suburbs of Maryland, where they discovered powder and crash cocaine, as well as $850,000 in cash. Jones was ultimately convicted in 2008 for possession and conspiracy to distribute more than 50 kilograms of cocaine and sentenced to life in prison. Citing his Fourth Amendment right to be free from unreasonable government search and seizures he appealed the decision. The police insisted that the GPS tracking was no different than police observing the activity in a public space and roadway, where we do not have a reasonable expectation of privacy.
The facts of the case are simple enough. The facts do not factor at all into the appeals. Rather, the task before the Supreme Court of the United States is to strike equilibrium between rapidly evolving technologies and (perhaps not quickly enough) changing social norms. At the D.C. Circuit Court of Appeals, Justice Douglas Ginsburg concluded that this GPS technology was so invasive that it did not track Jones’s movement from place to place, but actually tracked his movements 24 hours a day for 28 days. This technology “discover[ed] the totality and pattern of his movements.”
In the oral argument before the Supreme Court last week, the government relied heavily on the 1983 case, United States v. Knotts [460 US 276 (1983)]. In this leading case, a police radio transmitter was placed on one of the accused’s shipping containers without a warrant. The Supreme Court then held that this did not constitute a violation of the accused’s Fourth Amendment right.
Since the 1980s, technology has evolved in such a spectacular way that we now have a device whereby a satellite could track our movements at any time on almost any corner of the earth. The “beeper” that sent signals to the police radio in Knotts now seems like an antique. As a result of technological advances in recent years, we have come to expect less privacy. The government makes this point by pointing to the prevalence of security cameras in public areas. So, it must be asked: despite the evolution of technology, at what point do the courts need to stop chipping away at our Fourth Amendment right? Our Fourth Amendment right to be free from unreasonable government search and seizure basically protects us from searches in which: (1) the person expects privacy in the thing searched; and (2) society believes that the expectation to be reasonable (Katz v. United States [389 US 347 (1967)]. The fulcrum of the case at hand is, therefore, whether society believes that not having our cars tracked by GPS devices is a reasonable expectation.
This test is what prompts Dahlia Lithwic, writing for Slate, to conclude that it has “long been a truism of Fourth Amendment law that the “reasonable expectation of privacy” test is circular. Each time the state chips away at your privacy, you expect a little less.”
The blurring lines between inside/outside
Much of the case comes down to a distinction between “inside” and “outside,” which is central to the reasonable expectation of privacy test laid out in Katz. The police need to respect our privacy inside – namely, inside our homes. Outside, they are free to patrol public spaces and survey us. This is brought up by Justice Ginsburg during the oral arguments: “The government’s position would mean that any of us could be monitored whenever we leave our homes,” she states. Justice Ginsburg continues with a hypothetical question: “Is the end point of your argument, that an electronic device, as long as it’s not used inside the house, is OK?” Dreeben, for the state, responds quickly. He specifies that the issue here is “monitoring somebody’s movements in public. We are not talking about monitoring their conversations, their telephone calls, the interior of their cars, their private letters or packages.”
At this point, we Canadians should think back to a case in 2004 at the Supreme Court of Canada, R. v. Tessling [2004 SCC 67], which tackled Forward-Looking Infra-Red (FLIR) technology in a case involving a marijuana grow-op. The majority of the bench held that this technology did not violate our Charter rights. Police were using FLIR to get information about heat emanating from the accused’s house, from which they could draw inferences about the activities that were likely to be going on. Although operating outside, the police could get their hands on sensitive information about inside the property. FLIR technology, though not nearly as invasive as GPS technology, is but one example of how technology renders the Court’s investment in the inside/outside distinction completely moot.
Justice Ginsburg, however, seemed to have bought Dreeben’s distinction. Justice Breyer did not. He delves into “futuristic scenarios,” citing George Orwell’s magnum opus, Nineteen Eighty-Four. (Nineteen Eighty-Four seems to be a favourite of the Court, cited in at least three previous decisions.) Breyer is less concerned about the actual surveillance (inside v. outside, for example), but rather how it could be collected and subsequently used. He draws a distinction between human-beings surveying each other, which is hardly ever done around the clock. More importantly, human memory is fallible, whereas data generated by these GPS devices are computerized and stored, and so infallible. Justice Breyer invokes Orwell to force us to picture a world in which the police have stores and stores of our data, data that reveals our most personal habits and intimate details.
One of Dreeben’s responses is that our most personal habits and intimate details can be revealed by our credit card statements. Nothing stops the police from studying our credit card statements, rifling through our trash, etc. for a month.
What about cameras?
The Court expends quite a bit of energy discussing how GPS technology differs from surveillance cameras. As soon as Justice Ginsburg brings up the analogy, Justice Kagan pipes in about London: “If somebody goes to London, almost every place that person goes there is a camera taking pictures.” Leckar exclaims: “It’s pretty scary. I wouldn’t want to live in London under those circumstances.” Justice Scalia, in typical Scalia fashion, injects some tartness and humour into the hearings: “Well, it must be unconstitutional if it’s scary. I mean, what is it, the scary provision of what article?”
At this point, someone noted that these cameras were responsible for helping to track down the bomber who was going to blow up Glasgow airport before he did. As useful as this technology may be in terms of national security, we have to wonder how far it will go. Right now, at least in the United Kingdom, they are installed on lampposts on the street as a way to monitor those on the sidewalk and around nearby buildings. Justice Sotomayer imagines a scenario where cameras, on the corner of the street or way up in space in satellites, can show us our neighbour in magnificent detail: “There are now satellites that look down and can hone in on your home on a block and in a neighborhood. I don’t see that far in the future when those cameras are going to be able to show you the entire world and let you track somebody on the camera from place to place.” (Because technology has not progressed that far yet, we have not had to really address this issue and litigate on it. As it stands, however, security cameras may be used by the government in any public space.)
At times, it seemed as though the oral arguments were going back and forth, and not really leaning in one direction or another. No matter how many arguments and counterarguments, and Orwellian future scenarios, the justices raised, none of it was indicative of what the final outcome would be. What is underlined by the case as a whole is that the law is increasingly out of place with technology. First, the inside/outside distinction as part of the reasonable expectation of privacy test under the Fourth Amendment is greatly undermined by new technology. Above all, however, technology – by making our lives more efficient and in some ways easier – has completely changed our own expectations about privacy. Justice Kagan points to smart phones with built-in GPS devices that allow our phones to track our physical location. We could find the nearest Starbucks. In exchange, anyone could find us. With these devices in our pockets all the time, should we really quip about a GPS tracker on someone suspected of dealing illegal drugs?
Here is where the danger lies. Law and technology, with respect to unreasonable searches and seizures by the government, move in a circular way: the more we rely on our technology (and make friends with it, like Apple’s Siri) and the more it shapes our lives, the less privacy we expect. The law reinforces this, beginning with the cute little beeper devices in the 1980s case of Knotts. So, when we ask the law to turn around and protect our privacy, we find that we have already bitten the hand that feeds us.