Monthly Archives: December 2011

Every Move You Make May NOT Be Protected

Alyssa Enzor, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Can the government put a GPS tracking device on your car and monitor your movements for a month without violating your Fourth Amendment rights? The Supreme Court is currently deliberating this question.

On November 8th, the Court heard oral arguments in U.S. v. Jones. Antoine Jones was suspected by the FBI of trafficking drugs. To confirm these suspicions, agents secretly attached a GPS tracking device to his car without first obtaining a warrant. Well, more correctly, agents had a warrant, but they let it expire before they managed to get the device on the vehicle. The warrant said ten days, they took eleven. As a result, we have a potentially momentous Supreme Court case. The GPS device that was attached to Mr. Jones’ car was advanced. Whenever the car was in motion, the device sent detailed location information every ten seconds via remote satellite to agents. These agents were then able to track the vehicle by logging into a remote computer system. The major issue before the Court is whether the use of this device implicates Fourth Amendment protections.

A search without a warrant is per se unreasonable under the Fourth Amendment. However, Mr. Jones must establish that a search actually occurred by meeting the two-part test outlined in Katz v. U.S. Mr. Jones must show: (1) first, that he exhibited an actual subjective expectation of privacy, and (2) second, that his subjective expectation of privacy is “one that society is prepared to recognize as reasonable.” If he proves both prongs of this test, then he is entitled to Fourth Amendment protection.

Furthermore, the Court must also determine whether U.S. v. Knotts is applicable, and if so, to what extent. In Knotts, the Court held that the installation and use of a beeper device to track a drug suspect across state lines was not a search in violation of the Fourth Amendment. In particular, the Court held that a person has no reasonable expectation of privacy in his movements from one place to another. The Court noted in Knotts that a “car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.”

The issue in U.S. v. Jones is whether Mr. Jones can demonstrate a reasonable expectation of privacy concerning his travel over public roads. More accurately, does society reasonably expect that every time an individual climbs into his car, his movements may be monitored by the police or other enforcement agencies? If the Court rules that Mr. Jones had no expectation of privacy, and thus, there was no need to obtain a warrant to attach and use the GPS device, then that decision potentially opens the door for twenty-four/seven surveillance of people traveling in their vehicles.

At oral argument, the government relied heavily on Knotts. Michael Dreeben, Deputy Solicitor General of the United States, focused on the fact that in Knotts, the device allowed the police to relocate the suspect after he ditched the officers’ car that was tailing him. Chief Justice Roberts jumped at this chance to distinguish the case, noting that Knotts was “much more like traditional surveillance,” where the beeper just helped the cops follow the car from “a slightly greater distance.” This GPS technology, he said allows police to “just sit back in the station and . . . push a button whenever they want to find out where the car is.”

Chief Justice Roberts also elicited snickers from the rest of the panel when he asked Mr. Dreeben whether there would be a search if the police put a GPS device on each of the Supreme Court Justices’ cars for a month. Justice Breyer echoed this concern in even more sweeping language, stating “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.” He went on, focusing on the practical distinctions between the limited surveillance techniques that used to be available to police and the broad surveillance that is now possible through the use of advanced technology. “No one,” Justice Breyer stated, “at least very rarely, sends human beings to follow people 24 hours a day . . . but with the machines, you can.” A ruling in favor of the government would require no reasonable suspicion, no probable cause, in fact, no proof of any kind, for the police to attach a device to a person’s vehicle and find out where he or she goes each day.

Although all of the Justices expressed concern about whether the Fourth Amendment continues to protect citizens from the relentless advancement of technology which erodes individual privacy, Justice Scalia was the only one to truly show his hand. He came right out and denounced the Katz test, saying that it had shrunk the reach of the Fourth Amendment entirely too much. He emphasized his concern that the installation of the device itself was impermissible. He relied on the logic of technical trespass, rather than the more nuanced ‘privacy interest’ determination. He was profoundly disinterested in the entire discussion surrounding the monitoring of the device, suggesting that such concerns were the province of the legislature, not Fourth Amendment jurisprudence.

Jones’ attorney, Stephen Leckar, may have been right on target to capture Justice Scalia’s fancy, arguing for a narrow rule which holds that the installation of the device itself is a search or seizure requiring a warrant. However, he likely did not gain much support from the rest of the panel with this proposed rule, as the majority of the Justices seem to be seeking a broader standard. Justices Sotomayor and Ginsburg made repeated references to an Orwellian outcome and to Big Brother surveillance. Justices Alito and Kagan indicated that they are concerned with the long-term implications of advancing technology. Both Alito and Kagan criticized an approach centered on technical trespass, noting that new surveillance tools can always be developed to obtain the same information without committing a trespass. Justice Breyer was certainly not on board with the “installation only” approach, as he sought a standard to determine when GPS monitoring was reasonable and desirable. Unfortunately, Mr. Leckar seemed unable to offer a constitutional line in the sand that was satisfactory to the Justices. Upon his proffering one such proposal, Justice Sotomayor exclaimed, “What an unworkable rule tethered to no principle!”

After analyzing the progression of the oral arguments, it seems safe to say the Court is also not buying the mosaic or pattern theory advanced by the D.C. Circuit. This theory rests on the idea that there is a greater privacy interest in aggregated data gathered over a long period of time because all of the tiny pieces together create a larger, more complete picture of an individual’s life. Stealing a page straight from the playbook of Justice Sentelle’s dissent in the opinion below, Justice Scalia neatly countered this argument, saying “but zero times one hundred is still zero.” Counsel for Mr. Jones wisely abandoned the mosaic theory, and returned to his narrow approach—that the installation of a GPS device itself is a search or seizure requiring a warrant.

In summary, the Court seems quite uncomfortable with the idea of taking this type of broad digital surveillance completely out from under the Fourth Amendment’s umbrella. Although the government argues that state legislatures can act to prevent the much feared “1984 world,” the Justices seem skeptical about leaving the issue in the hands of the often-late-to-the-party legislative branch. On the other hand, the Court seems unable to come up with a workable principle on which to hang this case, without creating a landslide of Fourth Amendment precedent to come tumbling down around their ears. Placing the Fourth Amendment to the side, the issue is quite simple: is it really that hard to get a warrant, officers? Unfortunately, the Court is caught in the web of their own precedent. Those of us concerned with the ever-extending reach of the ‘long arm of the law’ must fervently hope they are able to disentangle themselves. We will know soon, as the Court is expected to issue a ruling at the end of June 2012.

Sources:

Katz v. United States, 389 U.S. 347, 357 (1967).

United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010).

United States v. Knotts, 460 U.S. 276 (1983).

http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-1259.pdf

http://jolt.law.harvard.edu/digest/supreme-court/u-s-v-jones-oral-arguments

http://volokh.com/2011/11/08/reflections-on-the-oral-argument-in-united-states-v-jones-the-gps-fourth-amendment-case/

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