By Hugh B. Kaplan and Alexei Alexis
The location information gathered by Global Positioning System devices falls within the protection of the Fourth Amendment, the U.S. Supreme Court decided Jan. 23. The court split 5-4 over exactly how far to take the warrant requirement in this case, but all nine justices rejected the argument that location information is not private for Fourth Amendment purposes (United States v. Jones, U.S., No. 10-1259, 1/23/12).
Justice Antonin Scalia's opinion for the court limited the holding in the case to the situation in which police surreptitiously install a GPS device before monitoring it. Justice Sonia M. Sotomayor signed on to the court's opinion, but she added a concurring opinion that reveals a majority of justices on the court would hold that the warrant requirement applies to any long-term GPS surveillance in other situations as well, such as tracking individuals through their smartphones.
At oral argument, the government contended that, even if GPS surveillance can amount to a search, it is a “reasonable” search so long as police have reasonable suspicion to believe wrongdoing is afoot. Although the court's opinion in Jones speaks in terms of applying the “reasonableness” requirement to GPS surveillance rather than applying the warrant requirement, none of the experts interviewed by BNA Bloomberg expressed a belief that the court is contemplating approving a GPS search in the absence of a warrant or a traditional warrant exception.
“Our cases suggest that … visual observation is constitutionally permissible. It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question. And answering it affirmatively leads us needlessly into additional thorny problems.” Justice Antonin Scalia The issue came up after narcotics investigators obtained a search warrant in the District of Columbia to attach a GPS tracking device to a drug suspect's car. The warrant later expired, but the investigators went ahead and attached the magnetic device to the undercarriage of the suspect's Jeep as it was parked in a public place in Maryland.
The device collected data about the Jeep's travels over the next month. Investigators used GPS data to link the suspect to a cocaine stash house, and this evidence was admitted in court to convict him of federal drug offenses.
The federal courts of appeals were divided over whether GPS surveillance of vehicles is a “search.” Most of those that had addressed the issue had held that it is not because an individual's expectation of privacy in information concerning his or her movements in public is not one that society would recognize as “reasonable” for Fourth Amendment purposes. See, e.g., United States v. Garcia, 474 F.3d 994, 80 CrL 491 (7th Cir. 2007).
The Supreme Court, however, affirmed a decision by the District of Columbia Circuit that had required a warrant for GPS surveillance. United States v. Maynard, 615 F.3d 544, 87 CrL 779 (D.C. 2010). Scalia's opinion for the court made clear that the modern, expectation-of-privacy test that the lower courts applied supplements rather than displaces early jurisprudence that had focused on property rights. “The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a `search' within the meaning of the Fourth Amendment when it was adopted,” the court said.
The D.C. Circuit and privacy advocates had distinguished the nature of GPS surveillance from the beeper-tracking cases in which the Supreme Court had applied the principle that observations of the location of a vehicle on the public roads is not private. The Maynard court stated, “Unlike one's movements during a single journey, the whole of one's movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. … The whole of one's movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more—sometimes a great deal more—than does the sum of its parts.”
The Supreme Court resolved the case on a much narrower ground. The distinguishing feature of this case, the court decided, was the officers' trespass on the Jeep. “Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a ‘search' within the original meaning of the Fourth Amendment,” the court said. “Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred,” the court said.
The court added that, even assuming that the Maynard court and the concurring justices are correct about the nature of long-term GPS observations, its cases “suggest that … visual observation is constitutionally permissible.”
“It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question. And answering it affirmatively leads us needlessly into additional thorny problems,” the court said.
Justice Samuel A. Alito Jr., joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Elena Kagan, said the court should analyze the case by determining whether GPS monitoring intrudes on an expectation of privacy that society would recognize as reasonable. “Under this approach, relatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable. … But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy,” Alito argued. “For such offenses, society's expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period,” he maintained.
Alito also said, “In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. …A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”
Sotomayor's concurring opinion likewise pointed out that there will be cases in which the government is able to conduct surveillance without trespassing on suspects' effects, and in these cases even short-term GPS surveillance would intrude on a reasonable expectation of privacy. Like the Maynard court, Sotomayor emphasized the capacity of GPS surveillance to reveal details about people's lives concerning their politics, sexuality, religiosity, and other private information. She emphasized that participating in our modern digital society requires disclosure of all sorts of information to third parties, such as internet service providers and cell phone service providers.
Sotomayor also said it is time to re-examine the principle that information one reveals to third parties is not protected by the Fourth Amendment. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor observed.
Susan Walsh, of Vladeck, Waldman, Elias & Engelhard PC, New York, filed an amicus curiae brief on behalf of the National Association of Criminal Defense Lawyers. She told Bloomberg BNA that Sotomayor's concurring “foreshadows” the next big digital privacy issue facing the courts: “whether someone taking part in a digitally advanced society, who has to surrender private information for some limited purpose … like shopping or researching on-line, thereby surrenders the privacy in that information for all purposes.”
At oral argument, the government maintained that GPS is particularly useful early in investigations, before law enforcement officers have developed probable cause.
Douglas H. Hallward-Driemeier, of Ropes & Gray LLP, Washington, D.C., told Bloomberg BNA that he did not think the warrant requirement contemplated by the justices would “create a big problem for law enforcement.” Hallward-Driemeier is a co-author of The Constitution Project's amicus brief in Jones. Any uncertainty about how long GPS monitoring may go on before it triggers the warrant requirement is not likely to cause problems for law enforcement, Hallward-Driemeier predicted.
He pointed out that The Constitution Project's Committee on Liberty and Security issued a report on location tracking and the Fourth Amendment in September 2011. The members of the committee included former prosecutors, legislators, intelligence officials, privacy advocates, and others. Like the concurring justices in Jones, they concluded that GPS tracking does intrude on a reasonable expectation of privacy, and they advocated adoption of a bright-line test that would require law enforcement to obtain a warrant authorizing any GPS surveillance that lasts 24 hours. The report is available on The Constitution Project's website at http://www.constitutionproject.org/pdf/locationtrackingreport.pdf.
Hallward-Driemeier said the proposed 24-hour rule is consistent with the distinction between “monitoring a day in the life of someone, and monitoring someone's way of life.”
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said the unanimous decision represented a victory for privacy rights in the digital age.
“The Court's determination that the government must obtain a search warrant before attaching a GPS device to a suspect's car to monitor that suspect's location highlights the many new privacy threats posed by new technologies and the pressing need to update our federal privacy laws,” Leahy said in a statement.
The senator noted that he has introduced legislation (S. 1011) that would amend the Electronic Communications Privacy Act to, among other provisions, establish new protections for geolocation data.
“Congress must now do its part to enact this legislation, so that our federal privacy laws keep pace with technology and protect the interests of our nation's citizens, law enforcement community, and thriving technology sector,” Leahy added.
Charles H. Kennedy, a partner at Wilkinson Barker Knauer LLP in Washington, told Bloomberg BNA that the court failed to address broader geolocation privacy concerns that have been raised by proponents of ECPA reform, such as the tracking of individuals using their cell phones.
“The legislative efforts are just as relevant today as they were yesterday, before this decision, because of the very narrow basis for the outcome here,” Kennedy said. “The court didn't address the larger question of what do you do about electronic tracking that doesn't involve any physical trespass. The other thing they didn't address at all is what do you do about stored communications, which is an emphasis of the Leahy bill.”
Still, even if legal questions remain, any time the Supreme Court rules unanimously on the side of protecting Americans' privacy rights, that carries significant “moral weight,” he said.
Gregory Nojeim, a senior counsel at the Center for Democracy and Technology, a Washington-based technology policy group, told Bloomberg BNA that the case should invite legislative action.
He noted that five justices did not think that a physical trespass was essential to the decision about whether a warrant should be required, which has implications for real-time cell phone tracking.
“This should give Congress an impetus to take on the issue,”Nojeim said.
American Civil Liberties Union Legal Director Steven R. Shapiro agreed that, while the case turned on the fact that the government physically placed a GPS device on the defendant's car, the implications are much broader.
“A majority of the Court acknowledged that advancing technology, like cell phone tracking, gives the government unprecedented ability to collect, store and analyze an enormous amount of information about our private lives,” Shapiro said in a statement. “Today's decision suggests that the court is prepared to address that problem. Congress needs to address the problem as well.”
Deputy Solicitor General Michael R. Dreeben, Washington, D.C., argued for the government. Stephen C. Leckar, of Shainis & Peltzman Chartered, Washington, D.C., argued for the defendant.
The full text of the opinion is at http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)