Wednesday, November 9, 2011

Update on GPS Tracking Case Being Debated by Supreme Court

I want to follow up on my last post regarding the historic case before the Supreme Court - for which hearings began yesterday - as to whether law enforcement should be required to attain a warrant BEFORE tracking a suspect (or alleged suspect) using GPS technology.

I've written on this case, and issue, extensively on this blog, so I'm not going to rehash all that now (see last post for a decent summary). Suffice it to say, there is a WHOLE lot riding on this case. 

For today's purposes,  I'm just going to share some excerpts from a variety of news media that covered yesterday's hearings.

As NPR reported:

George Orwell's 1984 was very much on the minds of the Supreme Court on Tuesday, as the justices grappled with a question that pits the use of modern technology in law enforcement against individual privacy interests. At issue is a case testing whether police must obtain a warrant before putting a GPS tracking device on a car to monitor a suspect's movements.


Dreeben, in his argument, urged the court to stick to the line it has drawn in the past — no warrant is needed for surveillance of activities conducted on public roads. Chief Justice John Roberts, however, seemed skeptical about applying that rationale to new technologies, asking if the government could "put a GPS device on our cars and monitor us?" Dreeben responded that under the government's theory and the court's precedents, "the justices of this court, when driving on the streets, have no greater expectation of privacy" against a GPS device attached to the car "than they would if the FBI followed them around the clock."

Justice Stephen Breyer struck a more ominous tone, asserting that "if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movements of every citizen in the United States," a scenario that "sounds like 1984." Discussion of Orwell's dystopic novel arose five times during the argument.

Justice Sonia Sotomayor asked Dreeban to explain the difference between the warrantless use of GPS devices and the general search authority that outraged the Founding Fathers and inspired the Fourth Amendment ban on searches without court authorization. Dreeben maintained, however, that putting a GPS device on a car is not a search. And he seemed to suggest that people have different expectations of privacy in an era of technological advances.

That is "too much for me," interjected Justice Elena Kagan, suggesting that people would think their privacy interests are violated by having a robotic device monitoring their movements 24 hours a day.

Read more here.

And this from the New York Times:

On Tuesday, Chief Justice John G. Roberts Jr. said there might be a constitutional difference between discrete pieces of data and the collection of vast amounts of information. “You’re talking about the difference between seeing the little tile and seeing a mosaic,” he said.

But Michael R. Dreeben, a deputy United States solicitor general, said there were no constitutional limits to the government’s ability to track people’s movements in public. He said a device surreptitiously attached to clothing would be permissible so long as it did not convey information from inside a home. He added that the police could track the movements of the justices’ cars without a warrant.

On hearing those statements, Justice Ruth Bader Ginsburg said the “endpoint” of the government’s argument was that “an electronic device, as long as it’s not used inside the house, is O.K.” Mr. Dreeben said that was correct regarding people’s movements in public. Other forms of monitoring — of conversations inside cars, say — were subject to different rules, he said. 

That means, Justice Stephen G. Breyer told Mr. Dreeben, that “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.” And that, Justice Breyer said, “sounds like ‘1984.’ ”

Mr. Dreeben said, “The court should address the so-called ‘1984’ scenarios if they come to pass, rather than using this case as a vehicle for doing so.” But Justice Sonia Sotomayor indicated that the scenario might have already arrived. “It wouldn’t take that much of a budget, local budget, to place a GPS on every car in the nation,” she said.


Justices Samuel A. Alito Jr. and Antonin Scalia said such arbitrary limits should be imposed by legislatures rather than a court.

Read more here.

And finally, the Washington Post also chimed in:

It is allowed under the court’s own precedents, replied Deputy Solicitor General Michael R. Dreeben, and is no different than if the FBI “put its team of surveillance agents around the clock on any individual and follow that individual’s movements as they went around on the public streets.”

But to many of the justices, something did seem different. In an intense hour-long exchange in which the Big Brother of George Orwell’s novel “1984” was referenced six times, the justices wondered how the dizzying pace of technology has changed a person’s reasonable expectation of privacy.

The justices pondered a world in which satellites can zero in on an individual’s house, cameras record the faces at a crowded intersection and individuals instantly announce their every movement to the world on Facebook. They wondered about the government placing tracking devices in overcoats or on license plates.


The court is trying to apply the Constitution’s centuries-old protection against unreasonable searches and seizures at a time when devices such as a GPS can essentially do police officers’ work for them.But the justices also appeared conflicted about where to draw a constitutional line.

Stephen C. Leckar, representing Jones, said police should be required to persuade a judge to issue a warrant for each use of a GPS device. But the justices wondered how that squared with their previous rulings that no warrant is needed when the person being targeted was being monitored in public places.

“If there is no invasion of privacy for one day, there is no invasion of privacy for 100 days,” Justice Antonin Scalia said. 
Alito said Leckar had not shown that using a GPS device was any different from traditional police surveillance.

Obviously there's no way I can get a real "feel" for which way the court may rule. I'm ALWAYS deeply skeptical that the 4 extremists, and the one conservative, will ever rule in favor of the public interest when either corporate interests, or civil liberties, are concerned. Nonetheless, some of the questions posed by Roberts and Alito are at least modestly hopeful. Of course, the real wildcard, Justice Anthony Kennedy, was not quoted in any of the articles I've seen...and he remains the judge I'll be keeping my eye on.

I think today's editorial in the USA Today hit the nail on the head,  "The government's argument is that police don't need a warrant when they track people on public roads where they can be watched by cameras and other drivers — and where police could physically tail them without a warrant.

But of course, the technology changes everything. Even with speed cameras, red-light cameras and a squadron of pursuers, authorities would have a very hard time amassing a record of every place someone travels for 28 days.

The idea is, indeed, Orwellian, not to mention downright "creepy and un-American," to use the words of the chief justice of the 9th Circuit Court of Appeals. At a minimum, police should first have to convince a judge that there's probable cause to issue a search warrant — and use it properly.

The Founding Fathers, brilliant though they were, could not possibly have envisioned GPS technology. But they certainly understood the principles of personal freedom, and two centuries later those haven't changed a bit.

First and foremost, the Constitution they wrote guarantees individual rights against unnecessary government intrusion. Let's hope that when the Supreme Court rules in this case, it does the same.

With that, stay tuned.

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