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SC Justices Unsettled Over Warrantless GPS Tracking

SC Justices Unsettled Over Warrantless GPS Tracking

To follow a suspect in a car or on foot seems eminently reasonable, but several Supreme Court justices appear to have serious reservations over allowing police and the FBI to place GPS tracking devices on vehicles without a warrant or permission. The practice calls up visions of an Orwellian 1984 society, Justice Stephen Breyer remarked during oral arguments in what could be a pivotal case.

By Erika Morphy
11/09/11 10:43 AM PT

Questions posed by U.S. Supreme Court Justices to attorneys making oral arguments in United States v. Jones suggest the case could have significant implications for search-and-seizure law and police practices.

The justices grilled both the U.S. attorney general and the defense attorney for Antoine Jones, a former Washington nightclub owner who is serving a life sentence for cocaine trafficking.

Jones' conviction was based in part on evidence gathered when police placed a GPS device on his Jeep and tracked his movements for a month.

Jones claims that placing the GPS device on his vehicle without a warrant was a violation of his Fourth Amendment rights.

No Expectation of Privacy

The government's argument, in a nutshell, is that Jones' car was in the public domain while being tracked, and no one can have any expectation of privacy while in public.

"Technology doesn't make something private that was public," Deputy Solicitor General Michael Dreeben said.

Dreeben's argument is based on a 1983 Supreme Court decision in United States v. Knotts that determined the government could use co-called "bird dogs," or beepers, to track a car without a warrant.

Stephen Leckar, arguing for the defendant, said that the two situations were completely different: The use of beepers requires a human element of surveillance, as they only track for short distances. A GPS device, however, can carry out highly pervasive 24/7 monitoring in the absence of any human.

In addition, the placement of a GSP device on a suspect's car is a violation of trespass laws, he maintained.

Chief Justice John Roberts seemed to make a distinction between the shoe leather involved in using 30-year-old beeper technology Visit the VMware Tech Center and the automatic data collection of a GPS unit.

"You get a lot more information from the device now," he said. "Now, law enforcement just sit back while a device is collecting tons of information."

'Like 1984'

Taken to the extreme, the government's position is that it has a right to monitor anyone anytime while in public using a GSP device, observed Justice Stephen Breyer.

"If you win, you suddenly produce what sounds like 1984," he remarked.

The government doesn't intend to use the technology in this manner, Dreeben responded.

It could be extrapolated that the government could use cellphones in a similar manner, Justice Sonia Sotomayor suggested.

"Your theory is that as long as you're monitoring someone in public, it's reasonable for you to use their possessions to track them," she said.

'Hard to Tell'

Despite the pointed nature of the questioning, the Court's opinion on the matter is unclear, said Peter Toren, a partner at Shulman Rogers.

"Search and seizure cases are especially hard to tell when it comes to SCOTUS," he told TechNewsWorld.

"In the past, it hasn't split along conservative versus nonconservative lines," Toren noted. For example, Justice Antonio Scalia has been inclined toward findings of unconstitutionality in past search-and-seizure cases.

The case will likely be decided as narrowly as possible, Toren guessed, leaving the issue to be revisited when another case arises -- or possibly when new tracking technology emerges.

A Civil Angle

The implications of this case could reach beyond the criminal realm to have an impact on civil lawsuits as well, Peter S. Vogel, a trial partner at Gardere Wynne Sewell, told TechNewsWorld.

Depending on how the Supreme Courts words its opinion, it could open the door to the use of GPS tracking on cellphones, iPads, and tablets in litigation, he said.

"The Constitution provides protection for the invasion of privacy, but the Supreme Court may rule in such a way that GPS data may no longer be private," said Vogel, "so that litigants may be able to get evidence about when and where witnesses and parties travel."


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