The Supreme Court of the United States heard oral arguments yesterday in U.S. v. Jones, where the Court will decide whether officers can install a GPS tracking device on vehicles without obtaining a search warrant. At oral argument, the government relied on existing precedent in U.S. v. Knotts (1983) and U.S. v. Karo (1984) to argue that individuals have no expectation of privacy on the public roads, so using advanced technology to track those public movements does not implicate Fourth Amendment interests at all.
However, Lyle Denniston, writing for the always excellent SCOTUSblog, reports that oral argument in the Jones case yesterday strongly suggests most Justices view GPS tracking as different and more threatening than beepers, and that that view comes from both the more conservative and more liberal members of the bench. The Court may be prepared to find that a “complete robotic substitute” for targeted surveillance even on the public streets can violate the Fourth Amendment. If they do so, they could write an opinion that updates the Fourth Amendment for the digital age in much the same way as the seminal U.S. v. Katz case did in 1967 when, for the first time, the Court held that warrant-less eavesdropping on phone calls was unconstitutional.
The most telling question may have been when the Chief Justice asked:
“You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? You think you’re entitled to do that under your theory?”
Of course, the Government’s answer to that has to be, and was, yes. I’ve always joked that the true Fourth Amendment test is whether the Judge can imagine the surveillance in question happening to him, and not liking it. If so, then it’s unconstitutional on the grounds of pure creepiness.
If the Court does go this way, then the question is how it will reason the matter. Jim Harper of The Cato Institute opined that during the hearing the Court didn’t seem to coalesce around any one rationale for ruling against the government. There are several options. Cato argued in its amicus brief in the Jones case that if information cannot be accessed , either because to do so is illegal or impossible with ordinary perception, then those searches and seizures must almost always be based upon a warrant. There’s also the recent opinion of Eastern District of New York Judge Garaufis distinguishing between technologies that help officers track someone’s movements from one place to another and “dragnet type law enforcement practices” such as “twenty-four hour surveillance of any citizen”. Another possibility is for the Court to leave the issue as a constitutional matter, and hope for future statutory regulation like the Geolocation Privacy and Surveillance Act. Of course, if the Court punts and Congress doesn’t act, citizens are left with no protections.
Depending on how the Justices go, the opinion will have implications for other location tracking technology including the use of cell tower data, “stingray” devices, Lojack for Laptops and Find My Phone.
