Supreme Court: GPS Tracker Violated Privacy Rights

By Adam Liptak, The New York Times

23 January 12

he Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect's car and monitored its movements for 28 days.

But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.

Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, said the decision "is a signal event in Fourth Amendment history."

"Law enforcement is now on notice," he said, "that almost any use of G.P.S. electronic surveillance of a citizen's movement will be legally questionable unless a warrant is obtained in advance."

Though the ruling was limited to physical intrusions, the opinions in the case collectively suggested that a majority of the justices are prepared to apply broad Fourth Amendment privacy principles unrelated to such intrusions to an array of modern technologies, including video surveillance in public places, automatic toll collection systems on highways, devices that allow motorists to signal for roadside assistance and records kept by online merchants.

The case decided Monday, United States v. Jones, No. 10-1259, concerned Antoine Jones, who was the owner of a Washington nightclub when the police came to suspect him of being part of a cocaine-selling operation. They placed a tracking device on his Jeep Grand Cherokee without a valid warrant, tracked his movements for a month and used the evidence they gathered to convict him of conspiring to sell cocaine. He was sentenced to life in prison.

The United States Court of Appeals for the District of Columbia Circuit overturned his conviction, saying the sheer amount of information that had been collected violated the Fourth Amendment, which bars unreasonable searches.

The Supreme Court affirmed that decision, but on a different ground. "We hold that the government's installation of a G.P.S. device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search,' " Justice Antonin Scalia wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.

"It is important to be clear about what occurred in this case," Justice Scalia went on. "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."

In a concurrence for four justices, Justice Samuel A. Alito Jr. faulted the majority for trying to apply 18th-century legal concepts to 21st-century technologies. What should matter, he said, is the contemporary reasonable expectation of privacy.

"The use of longer term G.P.S. monitoring in investigations of most offenses," he wrote, "impinges on expectations of privacy." Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined the concurrence.

"We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark," Justice Alito wrote. "Other cases may present more difficult questions."

The leading Supreme Court precedent in the area, United States v. Knotts in 1983, allowed the use of a much more primitive technology, a beeper that sent a signal that grew stronger as the police drew closer and so helped them follow a car over a single 100-mile trip from Minnesota to Wisconsin.

The Knotts case was different, Justice Scalia wrote, because the police had placed the beeper in a container of chemicals before the suspect accepted it. In the Jones case, by contrast, "officers encroached on a protected area."

Justice Scalia added that the majority did not mean to suggest that its property-rights theory of the Fourth Amendment displaced the one focused on expectations of privacy.

"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," he wrote.

He acknowledged that Monday's decision left "thorny problems" for another day. But "there is no reason for rushing forward to resolve them here," he wrote

Justice Sotomayor joined the majority opinion, agreeing that many questions could be left for another day "because the government's physical instruction on Jones's jeep supplies a narrower basis for decision."

But she seemed to leave little doubt that she would have joined Justice Alito's analysis had the issue he addressed been the exclusive one presented in the case.

"Physical intrusion is now unnecessary to many forms of surveillance," Justice Sotomayor wrote. In the case of G.P.S. devices, she wrote, "I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on."

She went on to suggest that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties."

"People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers," she wrote. "I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every Web site they had visited in the last week, or month, or year."

Justice Alito listed other "new devices that permit the monitoring of a person's movements" that fit uneasily with traditional Fourth Amendment privacy analysis.

"In some locales," he wrote, "closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car's location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.

"Perhaps most significant, cellphones and other wireless devices now permit wireless carriers to track and record the location of users- and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States."