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Wednesday, February 15, 2012

Supreme Court: Warrants needed in GPS tracking

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Supreme Court: Warrants needed in GPS tracking

Text SizePrintE-mailReprints By Robert Barnes,

The Supreme Court ruled unanimously Monday that police must obtain a search warrant before using a GPS device to track criminal suspects. But the justices left for another day larger questions about how technology has altered a person’s expectation of privacy.

Justice Antonin Scalia wrote that the government needed a valid warrant before attaching a GPS device to the Jeep used by D.C. drug kingpin Antoine Jones, who was convicted in part because police tracked his movements on public roads for 28 days.

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“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’ ” under the Fourth Amendment’s protection against unreasonable searches and seizures, Scalia wrote.

All justices agreed with the outcome of the case, which affirmed a panel of the U.S. Court of Appeals for the D.C. Circuit that said evidence of Jones’ s frequent trips to a stash house where drugs and nearly $1 million in cash were found must be thrown out.

The police had obtained a warrant for GPS surveillance of Jones, but it expired before they attached the device to his car.

But there was a significant split on the court about whether Monday’s decision went far enough.

Scalia’s majority opinion, joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor, said the electronic surveillance, if achieved without having to physically trespass on Jones’s property, may have been “an unconstitutional invasion of privacy.”

But Scalia added: “The present case does not require us to answer that question.”

It was that question — society’s expectation of privacy in a modern world — that had animated the court’s consideration of the case. In an intense hour-long oral argument last November, the Big Brother of George Orwell’s novel “1984” was referenced six times.

The justices pondered a world in which satellites can zero in on an individual’s house, cameras can record the faces at a crowded intersection and individuals can instantly announce their every movement to the world on Facebook. They wondered about the government placing tracking devices in overcoats or on license plates.

Justice Samuel A. Alito Jr. said the decision also should have settled some of those questions instead of deciding a case about a “21st-century surveillance technique” by using “18th-century tort law.”

“The court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation),” Alito wrote.

Alito’s point was that it was the lengthy GPS surveillance of Jones itself that violated the Fourth Amendment and that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”

“For such offenses,” he wrote, “society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period.”

The key to the court’s more narrow decision on the case seemed to be Sotomayor. She praised Alito’s “incisively” written concurrence but indicated it might not have gone far enough.

“People reveal a great deal of information about themselves to third parties in the court of carrying out mundane tasks,” Sotomayor wrote. Perhaps people come to see a “diminution of privacy” as inevitable, Sotomayor said.

“I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every Web site they had visited in the last week, or month, or year.”

But, she said, “resolution of these difficult questions” is unnecessary because she agreed with the majority that the government’s “physical intrusion on Jones’ Jeep” supplies a narrower avenue to decide the case.

The case is United States v. Jones.

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