The U.S. Supreme Court, an institution steeped in tradition, steps into the turbulent world of new technology Tuesday. At issue before the court is whether police must get a warrant from a judge before they can attach a GPS tracking device to a car so they can monitor a suspect's every movement for an indefinite period of time.
The case could have enormous implications for privacy rights in the information age.
Police, quite naturally, want to use new technology to get the goods on the bad guys, and citizens, quite naturally, think that when they leave their homes, they still have some zone of personal privacy in their cars. This case presents that clash in vivid terms.
In 2004, a joint FBI-Washington, D.C., Metropolitan Police task force began investigating suspected drug kingpin Antoine Jones. First they got a warrant and wiretapped him, but Jones was careful about how he spoke on the phone. So then they put a GPS tracking device on his car, and for 28 days, every time that car moved, its location was tracked by satellite, with the information sent every 10 seconds to the FBI. The tracking led to Jones' arrest, plus the seizure of 97 kilos of cocaine and $850,000 at a stash house. Jones was convicted of conspiracy to distribute drugs, but a panel of conservative and liberal judges on the U.S. Court of Appeals in Washington unanimously threw out the conviction because the tracking device had been attached without a warrant. The court said that tracking a car for such a long period without court authorization violates the Fourth Amendment's ban on unreasonable searches.
The government appealed to the U.S. Supreme Court, contending that no warrant is required when a car is on public roads. And the Supreme Court hears arguments Tuesday in the case.
"It's critical to understand that this case is not about whether law enforcement can use GPS devices. It's about whether they should get a warrant," says lawyer Walter Dellinger, who represents Antoine Jones.
"If the Supreme Court gave a green light" to warrantless GPS tracking, he adds, then "any officer can install any GPS device for any reason on anybody's car, even if the officer thinks it would be interesting to know where Supreme Court justices go at night when they leave the courthouse. No one would be immune from having a GPS device installed on their vehicles."
The government, however, contends that the Fourth Amendment only bans warrantless searches of private spaces, like the home, or the interior of a car, or a locked office desk. And the Supreme Court has previously held that searches on public streets — of trash put out for pickup, for instance — do not require a warrant. In addition, the government asserts that the GPS device is just an electronic extension of old-fashioned human surveillance.
Pat Rowan, a former federal prosecutor and assistant attorney general in the Bush administration, supports that view. "There's no Fourth Amendment implication for what a person is doing out in the public space, whether they're walking down the street and being observed or whether they're driving down the street and being observed," he says.
Rowan concedes that everyone has what he calls "an instinctive reaction" that warrantless GPS tracking goes too far. But, he adds, "you are talking about a very clear line that the Supreme Court has laid down over a very long time, that what the police can observe in public, the individual doesn't have a reasonable expectation of privacy in. And this is the functional equivalent of having the police do a very effective covert surveillance of an individual over a long period of time."
Rowan does say as a practical matter that it would be next to impossible to conduct surveillance for a month without being detected. That's why the GPS is a game changer and, as Rowan puts it, a "terrific boon" for police.
So why not get a warrant first? Because to get a warrant, police have to show they have probable cause to believe a crime is occurring or has occurred. And the government says GPS tracking is particularly useful at the early stages of an investigation — before probable cause can be established.
"You have a lead against a person, but it's not corroborated," says Rowan. "You don't know what they're up to. This is a low-cost device that would allow the FBI or any law enforcement agency to gather a great deal of information about their movements without having to go to a judge and justify their investigation."
That's exactly the point, counters Dellinger, the defendant's lawyer.
"The government's position is that any law enforcement officer, in his completely unfettered discretion, can choose to put this device on anyone's car and track what medical appointments you go to, what religious groups you meet with, what political activities you drive to. This is really an extraordinary undertaking and one where the critical protection would be that a neutral magistrate would approve in advance whether there is actually some probable cause to believe someone has committed a crime before you install a GPS device," he says.
Dellinger has a second argument, not addressed by the appeals court, but that is before the Supreme Court. The Fourth Amendment to the Constitution bans not only unreasonable searches, but also seizures of a property. He argues that placing the GPS device on the exterior of Jones' car interfered with Jones' right to exclude others from using his car, and that planting the device constituted a trespass on Jones' property.
That argument does appeal to former Assistant Attorney General Rowan, who opines that "it just doesn't sound right" that there is no expectation of privacy when a device is covertly affixed to a car.
Indeed, an unscientific sampling of prosecutors shows a real hesitation about how far to push the envelope with GPS devices.
David Kelley, the former U.S. attorney in New York, who spent nearly 20 years as a federal prosecutor, says he always assumed that a warrant was needed for a long-term tracking device. "The four corners of the car is yours," he contends. "And you have a reasonable expectation of privacy in that."
Kelley concedes that requiring a warrant will mean some bad guys get away. "Tough luck," he says. "Go find another way to get the guy. And if you can't get probable cause, you know what? Maybe you have no business getting into that car to put in that device."
While today's case involves GPS devices, it could have enormous repercussions for other devices in the information age. What about cameras that photograph people on public streets? What about cellphones that can be tracked whenever they are on?
Defense attorney Dellinger maintains those are different: The cameras are stationary, and the cellphones can be turned off.
The Supreme Court is usually reluctant to rule boldly on matters of new technology. It has learned, the hard way, that the reach of new technology is hard to predict. In the 1920s, when law enforcement began wiretapping suspects, the court ruled that no warrant was required.
Nearly four decades later, in 1967, the court overruled that decision and said a warrant is required.
The court's only ruling on any sort of a car tracking device was in 1983. In that case, the court approved the placement, without a warrant, of a beeper in a large container that suspects put in their car. Police then followed the sound of the beeper for a single day. The court, however, specifically left open the question of whether any longer-term tracking device would require a warrant.
In recent years, the lower courts have split on the question.
In Washington, D.C., Judge Douglas Ginsburg, writing for a unanimous appeals court panel, said a warrant was required in the Jones case because of its intrusiveness. "A person who knows all of another's travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups."
The likelihood that police could conduct such a monthlong, 24/7 surveillance by just watching and following the suspect, he said, is "nil."
When the full nine-member appeals court declined to review the panel's decision, Chief Judge David Sentelle dissented. "A person's reasonable expectation of privacy while traveling on public highways is zero," he said, and "the sum of an infinite number of zero-value parts is zero."
That dissenting view prevailed on the opposite coast when the Ninth Circuit Court of Appeals, based in San Francisco, ruled that no warrant is required in GPS cases. When the court declined to reconsider its ruling, Chief Judge Alex Kozinski, a native of communist Romania who immigrated to the United States with his parents in 1962 when he was 12, dissented. "There is something creepy and un-American about such clandestine and underhanded behavior," he wrote of the warrantless placing of GPS tracking devices. "To those of us who have lived under a totalitarian regime, there is an eerie feeling of deja vu."