Important Things You Should Know About Privacy and the Supreme Court Ruling on GPS Tracking

On its face, this represents an important victory against the surveillance state. But this is a narrow ruling that leaves many crucial questions unanswered. 

By Scott Lemieux, AlterNet
Posted on January 29, 2012

Antoine Jones was sentenced to life in prison on drug distribution charges. The key evidence against him came from a month’s worth of data collected by a GPS tracker that police had attached to Jones’s car. The GPS, however, was attached without a valid warrant (police had obtained a warrant, but is was expired and for another jurisdiction.) Jones appealed his conviction, arguing that the warrantless GPS tracking violated the Fourth Amendment’s prohibitions against “unreasonable search and seizures.” The government replied that the installation of the GPS did not constitute a “search,” and hence could not have violated Jones’s constitutional rights. The Court of Appeals for the District of Columbia Circuit rejected the government’s argument, however. And earlier this week in United States v. Jones, the Supreme Court unanimously agreed that the police actions constituted a “search” and were subject to the restrictions of Fourth Amendment.

Here are some things you should know about this case and how the Bill of Rights might apply to modern technologies that increase the government’s power to invade private space:

1. While the Court ruled that Jones had been subject to a “search,” it did not address the question of whether the search was “unreasonable.” Because the search was conducted without a valid warrant, the search was presumptively unconstitutional. But – especially when it comes to cases involving the War On (Some People Who Use Some) Drugs – the Republican-dominated federal courts have been increasingly willing to carve out exceptions for warrantless searches. Until the courts decide this question, we don’t even know if the search of Jones will ultimately be ruled illegal.
2. Even in cases where a search has been held to be illegal, the Supreme Court has shown a willingness to water down the “exclusionary rule,” which holds that illegally obtained evidence cannot be used in courts. The provides strong incentives for the police to respect constitutional rights, because they cannot profit from illegal behavior; conversely, absent the exclusionary rule police have little incentive to comply with the law (civil remedies for violations of the Fourth Amendment are generally ineffective.) For example, in its infamous 2006 ruling Hudson v. Michigan, the Court ruled that while dangerous “no-knock” searches of homes were illegal, evidence obtained from them was admissible. If the courts rule that the search of Jones was illegal but the evidence can be admitted anyway, it will be a hollow victory for civil liberties indeed, as police will have strong incentives to push the envelope as new surveillance technologies emerge.
3. Justice Scalia’s majority opinion rested on grounds that actually have little application to new surveillance technologies. According to Scalia, since the GPS installation required trespassing private property, it “would have constituted a “search” within the original meaning of the Fourth Amendment.” While this isn’t necessarily wrong per se, as the concurrences by Justices Alito and Sotomayor point out ruling on this basis says nothing about more crucial questions about how the courts should assess searches that don’t require the direct invasion of physical property. As Justice Alito points out, “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.” As a result, the long-term consequences of this decision are unclear.
4. Justice Alito’s concurrence proposes that rather than focusing on whether a trespass of property has occurred, the Court should focus on whether or not an individual had a “reasonable expectation of privacy” (the standard the Court has generally used since the early 1970s.) Again, there’s nothing wrong with this in and of itself, but in practice these kinds of balancing tests are only as good as the judges applying them. (In theory, the rule that abortion regulations that constitute an “undue burden” are unconstitutional could provide robust protection for reproductive freedom; in practice, it doesn’t.) Alito focuses on the relatively extreme facts of the case (tracking that lasted a month seeking evidence for a non-violent crime), which opens up the possibility that the state will be given wide latitude under this standard.
5. By far the strongest opinion, then, is Justice Sonia Sotomayor’s concurrence. As she notes, “[a]wareness that the Government may be watching chills associational and expressive freedoms.” Given the rapidly expanding tools that the executive branch has at its disposal to conduct surveillance on citizens, and the general unwillingness of legislatures to restrain intrusive searches, it is crucial that the courts not be behind the curve in applying Fourth Amendment protections. United States v. Jones could be a good first step – but only if the many questions it leaves open are answered in a way that takes the protection of privacy seriously. Justice Sotomayor’s concurrence provides a good road map.