Supreme Court Voices Orwellian Concerns in Warrantless Tracking Oral Argument
Supreme Court justices showed significant concern over the possibility of Orwellian ramifications concerning warrantless tracking using secretly-installed GPS devices, during oral argument in Jones v. U.S. Tuesday. The high court is deciding the constitutionality of the practice under the Fourth Amendment. The issue was raised in the investigation and trial of Antoine Jones, who was suspected of dealing cocaine and was tracked with GPS for a month without a valid warrant. Much of the hearing focused on the “reasonable expectation of privacy,” as defined by Katz v. U.S., and the effect of changing technologies on police surveillance.
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The government’s argument relied on the idea that the GPS device supplied no more information or intrusion than full-time in-person police surveillance on public roads. The justices quickly voiced skepticism on that, with Chief Justice John Roberts asking if it would be constitutional for GPS devices to be placed on each of the justices’ cars to follow them for a month. Justice Department lawyer Michael Dreeben replied: “If the FBI wanted to, it could put its team of surveillance agents around the clock on any individual and follow that individual’s movement.” Justice Anthony Kennedy also pressed Dreeben, asking about the constitutionality of a similar device placed under someone’s sport coat that only gave information when that person was in public spaces. “There is a serious question about whether the installation of such a device would implicate either a search or a seizure,” said Dreeben. “But if it did not, the public movements of somebody do not implicate a seizure."
The argument also touched on the growing use of location devices and potential for future government use. Justice Stephen Breyer asked about the possibility of a 1984 scenario where the government continuously monitors its citizens. Dreeben said the high court should consider that scenario if it comes before the court and not in this case. “Under your theory, and the theory espoused in your brief, you could monitor and track every person through their cellphone, because today the smartphones emit signals that police can pick up and use to follow someone anywhere they go,” said Justice Sonia Sotomayor. Dreeben downplayed Sotomayor’s assertion, saying, “that goes considerably farther than our position in this case.”
The high court also pressed Jones’ lawyer over what constitutes a seizure. Roberts and Justice Elena Kagan asked whether the act of secretly attaching a GPS device without a warrant actually violates the Constitution. “The Fourth Amendment protects effects, it protects people,” said Stephen Leckar of Shainis & Peltzman. “If you put it on somebody’s briefcase, you put it on somebody’s car, you have affected their possessory interest.” Justice Antonin Scalia questioned Leckar on what exactly had been seized on the process. “What has been seized is Antoine’s data,” said Leckar. “Data is seized that is created by the GPS.” Jones has the right “to control the use of his vehicle and what the government did was surreptitiously deprive him of the use of that,” Leckar said.
There are ongoing legislative efforts on such tracking. Sen. Ron Wyden, D-Ore., recently introduced the Geolocation Privacy and Surveillance Act (S-1212) and a House companion bill (HR-2168) was introduced by Rep. Jason Chaffetz, R-Utah. The bills would limit police and government entities from warrantless tracking of individuals’ location data. Wyden said he would be following U.S. v Jones closely (WID Oct 19 p2).