Wednesday, November 09, 2011

Most SCOTUS judges seem inclined to require warrant for GPS tracking

"it must be unconstitutional if it's scary."
- Antonin Scalia, oral arguments, US v. Jones

(Updated/expanded 11/10) I've been reading the transcript (pdf) from yesterday's oral arguments at the US Supreme Court in US v. Jones regarding whether law enforcement needs a warrant to attach a GPS tracker to your car and continually gather location and other information. Others much more qualified than I have analyzed the debate, so see these folks for much meatier, more lawyerly analyses:
A few non-lawyerly things that jumped out at me:

First, there seemed to be wide agreement on the bench that GPS trackers on one's car should in most instances require a warrant, the only question being what exact rule should be enacted to limit the "plain view" exceptions that apply, say, with surveillance (electronic or physical) while driving along a public street. Orin Kerr was in the room and said he thought it was too close to call. Lyle Denniston, otoh, seemed to think most would go for a warrant requirement. My own prediction from afar, fwiw, Justice Scalia, Roberts and Alito will side with the liberal wing of the court to require a warrant under circumstances more prescriptive than this correspondent would prefer.

Second, Antonin Scalia seemed adamant that there was "unquestionably a trespass" involved in placing a tracker on a vehicle, which by definition makes it a "search," and most justices seemed to agree with him. Scalia seemed less convinced, though, as did the court, on whether the ongoing tracking function after the device had been placed constituted a "seizure."

A notable Scalia line: "you can say that there is a trespass for the purpose of obtaining information, which makes it a search. But I don't see how it's a seizure. A seizure, you have to bring something within your control. You have to stop the person or stop the vehicle. What has been seized when you -- when you slap a tracking device on a car?" I'm not completely sure how that distinction between search and seizure is practically important in this case, but it could be in the future. As I understand it, placing the device on the car may be a "trespass," hence a search, by Scalia's reasoning, but the ongoing broadcast of your location may not "seize" anything when your vehicle is in plain view from public vantage points). That said, it appears the search v. seizure issue need not be resolved, necessarily, to secure a court majority in this case.

Chief Justice John Roberts seemed (from the transcript) surprisingly, personally engaged on the subject, asking pointedly whether the state's advocate feels he is "entitled" to put a GPS tracker on the cars of the nine SCOTUS justices and "monitor ... our movements for a month." The attorney, Michael Dreeben, wouldn't immediately answer with a straight "yes" or "no," but Justice Roberts summarized his answer as "So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution." There were six different references during the questioning to George Orwell's novel 1984, including notably Justice Kennedy.

Justice Ginsburg asked what the difference between having a GPS attached to your car and living in London where virtually everywhere you go on the public streets you're under the watchful eye of CCTV? Good question. Counsel for Mr. Jones said he would find living in London under such circumstances "very scary," to which Scalia replied sarcastically, "it must be unconstitutional if it's scary."

Folowing up on the London surveillance theme, Justice Kennedy asked Jones attorney: "Suppose the police suspected someone of criminal activity and they had a computer capacity to take pictures of all the intersections that he drove through at different times of day, and they checked his movements and his routes for 5 days. Would that be lawful?" Mr. Leckar replied yes, under existing Supreme Court precedents, because there was no "physical intrusion" as in his client's case.

Justice Kagan at one point offered up a futuristic vision worthy of a Sci-Fi channel special, hypothesizing "a little robotic device following you around 24 hours a day anyplace you go that's not your home, reporting in all your movements to the police, to investigative authorities." She scoffed at "the notion that we don't think that our privacy interests would be violated by this robotic device," though that's a logical extension of the court's precedents on collecting evidence in so-called plain view.

Alito rightly observed that, because of past Fourth Amendment exceptions carved out by the court, it's pretty clear such comprehensive surveillance would be allowed, so the "heart" of this particular case is whether the state must trespass to place the GPS tracker. On that point, led by Scalia, the court seemed inclined to agree that that a trespass had occurred. Alito and Roberts' critical comments about the state's position made it seem to this writer like the majority will favor a warrant requirement for the search, perhaps disagreeing on to what extent there is a seizure.

Justice Breyer summed up the stakes well in this comment to the state's attorney: "if you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States." Bingo.

I generally agree with Justices Alito and Scalia that this is a line that legislatures should be drawing, though that preference shouldn't be used an excuse for SCOTUS failing to update its jurisprudence to match modern, high-tech reality. Fourth Amendment jurisprudence in modern courts has become degraded and unreliable. To combat the decline of Americans' right to be free from "1984"-style surveillance, which seems to leap past minimalist, low-tech, police-friendly SCOTUS rulings at every turn, legislatures need to actively rebuild Fourth Amendment principles from the ground up in the so-called laboratory of the states. The courts can't or won't do it, so legislatures must. That said, as Jones' attorney Stephen Leckard said to the court, "In this particular case I could probably give you 535 reasons why not to go to Congress." Ain't that the truth?

Finally, I was taken by Scalia's argument that, while normally the right to privacy is considered an expansion of the Fourth Amendment, in this instance SCOTUS privacy rulings are being used to argue for weakening traditional warrant requirements: A shrewd observation. He declared: "it is one thing to add that privacy concept to the Fourth Amendment as it originally existed and it is quite something else to use that concept to narrow the Fourth Amendment from what it originally meant." Hear! Hear! You tell 'em, Tony!

The transcript (pdf) from the oral arguments is an fun read for anybody geeky enough to be interested in these subjects. Go here to see briefs and amici from both sides as well as prior rulings.

Story idea: I know Grits has quite a few MSM readers, so for those of you in the press reading this, a great way to localize this story between now and the court's ruling sometime next year would be to find out if your local PD or Sheriff uses GPS tracking, what are their departmental policies, how many such trackers do they have, interview judges on whether local practice requires warrants, etc.? I suspect the majority of Supreme Court justices will find that GPS tracking of this type requires a warrant, so a story now on current uses of the technology puts you in a position to follow up next year to find out how locals are changing their ways, if and when the Supreme Court limits the practice.



Anonymous said...

I believe that regardless of how the SCOTUS rules, law enforcement will still use GPS illegally. And it needn't be a department registered device either, as now a cheap cell phone, a magnet, and a small strip of tape will suffice. The reason I'm so sure of this is I know of a couple of officers who use this method to track their wives.

RSO wife said...

I guess that's why I don't have the big desk and make the big bucks. I don't see why this is such a problem. The Fourth Amendment to the US Constitution says we have the right to freedom from search and seizure without a warrant. Couldn't be any plainer.

How extremely nearsighted of those who drafted that amendment not to add GPS tracking devices to vehicles. They should have known back then that we would have those things in 2011 and have provided for them.

I wonder which part of "NO" law enforcement does not understand?

A Texas PO said...

The whole idea of warrantless GPS tracking gives me the willies, but I have to wonder if the Court will consider how different this tracking is compared to good ol' fashioned tailing or stakeouts. Don't need a warrant to follow anyone in public these days, right? I'm eagerly awaiting the SCOTUS decision on this and other future privacy suits.

Soronel Haetir said...

Visually tracking someone doesn't require a trespass onto their chattel.

Actually, even in Knotts (the radio beeper case), there was no trespass. The beeper was included in something the defendant purchased. I would say that it was simply his carelessness that he did not check what he was buying for deviations from spec. And I would say that is a huge distinction. If the police can get someone to take a gps tracker in a package of drugs or other contraband so much the better for them, there is no right to possess contraband and thus anything different from or in addition to the contraband is the offender's own problem. The key difference is that the offender needs to accept the tracker on some new acquisition (even if they don't know they are doing so), instead of having it placed on something already in their possession.

Kevin Stouwie said...

This post is outstanding! Well done indeed, especially if the author does not have a law degree! Most lawyers could not have written a better piece about this issue, even if they were paid to do so.

Arce said...

The trouble with SCOTUS and the 4th amendment is that, over the years, the court has carved out so many exceptions based on issues like "no expectation of privacy", so your backyard is no longer covered by the 4th amendment if your neighbors could see over the fence. My law prof said that SCOTUS has made it like swiss cheese and there is more hole than cheese. If they go with the police on this one, there may not be enough left of the 4th amendment between the holes to consider that it still exists!!!

Anonymous said...

In my humble opinion, part of the problem with fourth amendment jurisprudence is the court's overreliance on the concept of "reasonable expectation of privacy." That may have worked well at one time but with new technology and the rapidly changing world we live in, it just doesn't work very well.

As far as the GPS tracking goes: The argument has been made that this is simply tracking a persons movement on public roads and could be done by surveillance, hence, no reasonable expectation of privacy. The problem is this type of surveillance could not be practicably done. It would take too many resources to follow people around 24 hours a day. I may be wrong but I'm thinking there may be some case law out there where this type of distinction has been made - where it may be okay to use this type of device to track someone for a short time, it would violate the fourth amendment to use it to track someone's movements over a longer period of time (without a warrant, of course). We'll see what SCOTUS says about it I guess.

Back to the "reasonable expection of privacy": I recently skimmed an article advocating that this be replaced by a balancing test based on the degree of intrusiveness weighed against the reason for the intrusion. This seems to make more sense to me, but in the end it is still a somewhat nebulous standard and may not help that much. The best thing to do would be for the courts to hold to a standard that says, if there's time to get a warrant, get a warrant. If you don't have probable cause to get a warrant, don't do it.

Anonymous said...

In your car you're in plain view to a guy standing at any one point along your path. But someone following you for your whole trip is generally stalking or harassment. The government shouldn't get away clean with tracking you just because you're in the public.