Last week, the United States Supreme Court announced its decision in U.S. v. Jones (Docket 10-1259), holding that “…the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’” The Court did not find warrantless GPS tracking unconstitutional. Media misunderstanding and attempts to create headlines have resulted in incorrect characterizations of the decision.
It had been anticipated that the Court would articulate constitutional limits to Government use of GPS surveillance in general. While the majority declined to do so, Justice Sotomayor and Justice Alito each authored concurring opinions revealing how the Court might apply the Fourth Amendment to the increasing possibility of Government surveillance without physical intrusion.
Facts of the Case
Government agents attached a GPS device to the Respondent Jones’s vehicle, which they used to track his locations for 28 days, collecting 2,000 pages of data. The Government used that information to indict and convict him of drug trafficking conspiracy, resulting in a sentence to life imprisonment. At trial, the District Court denied the Respondent’s motion to suppress as to all data obtained when the vehicle was not located at his residence, citing well-settled law that there is no privacy interest in one’s movement on public roads. On appeal, the Circuit Court reversed the Respondent’s conviction, finding that the admission of the evidence violated the Fourth Amendment. The Supreme Court granted certiorari.
Sticking to the Facts (Justice Scalia’s Majority Opinion)
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Justice Scalia was joined by Chief Justice Roberts as well as Justices Kennedy, Thomas, and Sotomayor, reasoning that “[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.” The Court rejected the Government’s argument that there was no search due to a lack of privacy interests in the exterior of one’s vehicle or movement on public roads; instead focusing on the Government’s intrusion on the Respondent’s vehicle, an “effect” protected by the Fourth Amendment.
The concurrences criticize the majority’s rationale, claiming that reliance on the Government’s physical intrusion reverts to the historical conception of Fourth Amendment protections at the expense of current understanding. Until the latter half of the twentieth century, a violation was considered to require the Government to physically intrude upon private property. For instance, in Olmstead v. United States, 277 U.S. 438 (1928), the Court found no violation where the Government employed a telephone tap from a public telephone pole.
Coinciding with technological advances that allowed for surveillance without trespass, the Court announced in Katz v. United States, 389 U.S. 347, 351 (1967) that “the Fourth Amendment protects people, not places”. There, the Court found a violation where the Government employed an eavesdropping device in a public telephone booth. In his concurring opinion, Justice Harlan proposed that a violation lies where the Government intrudes on a person’s “reasonable expectations of privacy.” Id. at 360. This came to be known as the “Katz test”.
The majority in Jones articulated that “the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test”, noting that the Government’s intrusion upon private property in order to gather information would have been considered a violation at the time of the enactment of the Constitution, and the Katz standard did not eliminate existing rights.
The Court emphasized that its holding depended upon the fact that the Government intruded upon the Respondent’s property to attach the GPS device while it was in the Respondent’s possession, distinguishing cases where a tracking device was attached to an article of property prior to its coming into respondents’ possession and the Court had found no violation. This leaves open the possibility that Government attachment and use of a tracking device at the time of your car’s manufacture might not constitute a search.
The Court was not called to determine whether the search in this case required a warrant, as the Government failed to raise the argument that if the Government action was considered a search, it was reasonable. The Court deemed the argument waived.
“Constitutional Minimum” (Justice Sotomayor’s Concurrence)
Although she joined in the majority opinion, Justice Sotomayor found its reliance on physical intrusion to property a “constitutional minimum”. She expressed concern for the extreme efficiency by which GPS monitoring would allow the Government to track intimate details of individuals’ lives, and suggested that her future decisions regarding the limits of Government technological surveillance would be focused on the potential for abuse and for chilling freedom of expression.
Most significantly, she suggested that due to growing dependence on digital technology, “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” This would mark a drastic departure from existing precedent; however, in an age in which technology pervades human activity and communication so completely, preserving any degree of privacy may require such action.
Let’s Get to the Point (Justice Alito’s Concurrence)
Joined by Justices Ginsburg, Breyer, and Kagan, Justice Alito proclaimed the majority’s dependence on physical intrusion “highly artificial” in consideration of available technology. He criticized the majority’s failure to address Government use of GPS surveillance, the possibility of manufacturer-installed Government surveillance devices, Government intrusion by electronic rather than physical means, and an assumption that the “reasonable expectation of privacy” is unchanging.
Due to the potential of technology to erode individual expectations of privacy, Justice Alito suggested that legislation may be enacted to define the parameters of Government surveillance. Such legislation would seem to be circuitous itself, in that the judicial branch of Government is charged with determining constitutionality of laws, and a law that allowed for violation of the Fourth Amendment would find redress in the courts.
Justice Alito proposed a distinction between short- and long-term surveillance, with the latter more likely to be considered a “search”. While there is no current authority for such a distinction, he argued that it would preserve traditional expectations of privacy, as long-term surveillance would have required vast Government resources. He noted that the distinction may not be as relevant for extremely serious crimes, where the Government would have been expected to go to great lengths to surveil suspects.
What Does it All Mean?
Jones is not only a groundbreaking application of Fourth Amendment protections to technological surveillance, it provides an example of the mechanics of legal discourse. To ensure justice and consistency rather than outcome-oriented decisions, judges look for prior law to apply when faced with new situations. The Court characterized its Jones rationale as a unification of the trespassory line of Fourth Amendment jurisprudence with the Katz test. While Justice Sotomayor acknowledged that the existence of a physical intrusion in this case allowed the Court to leave larger issues regarding Government technological surveillance for another day, she proposed major shifts in jurisprudence that the other Justices may contemplate before faced with decisions in future cases. Justice Alito, while agreeing with the majority’s result, expressed readiness to answer Fourth Amendment questions raised by the digital era. The near even split of the Justices signals that determination of these issues, and potentially drastic changes to conceptions of Fourth Amendment protections, is imminent.