Supreme Court Cops Out with Timid Ruling on GPS Tracking by Police

On January 23rd, the Supreme Court handed down a unanimous decision that went out of its way to avoid addressing key law enforcement and digital privacy issues — at least for now.


On its face, the decision outlaws GPS tracking without a warrant and scores a victory for privacy advocates under the Fourth Amendment. But the ruling is so limited in scope that it fails to set a usable precedent and doesn’t come close to qualifying as a watershed moment in digital privacy law. The Court ruled (in U.S. v. Jones) that police must obtain a search warrant to place a GPS tracking device on a suspect’s vehicle. In this case, the FBI and the District of Columbia placed a hidden GPS tracker on a vehicle operated by suspected drug dealer Antoine Jones in a public parking lot. The device recorded and transmitted the vehicle’s movements for 28 days.

The decision states that affixing a GPS tracker to the outside of a vehicle is equivalent to occupying private property for the purpose of gathering information on an individual or event. Therefore, it constitutes a search under the law, meaning a valid warrant was required.

The ruling upheld a lower court decision overturning Jones’s conviction. He remains a free man.

Major news outlets, including the New York Times and the New Republic, weighed in with opinion pieces about the potential effects of the decision. Predictably, there were impassioned entries in the Times’s comment section from people on all sides of the ideogical divide.

The decision is based on the fact that a GPS device was physically attached to the vehicle in question (in this case, Jones’s car). The Court made it clear that if a law enforcement agent were to have gained access to a vehicle’s location or other personal information via a device that was already inside the vehicle — such as a built-in GPS system or smartphone — then the ruling would not have applied.

The Court signaled it was open to hearing future digital privacy arguments.

Justice Antonin Scalia told the Times 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,” Scalia wrote.

Justice Sonia Sotomayor concurred with the majority opinion, noting that broader digital privacy issues could be addressed in the future, “because the government’s physical intrusion on Jones’s Jeep supplies a narrower basis for decision.”

Because the ruling was so narrow, many important questions remain, among them:

  1. Does the long-term electronic monitoring of private citizens violate their reasonable expectations of privacy?
  2. What additional prohibitions, if any, should be placed on GPS tracking (or other forms of electronic surveillance) by individuals or corporations?
  3. Are there circumstances that would permit short-term GPS tracking while a warrant request is being processed?
  4. The Court ruled that 28 days was too long to track a suspect. How long is too long?

The ruling is significant only because it prohibits a specific kind of GPS surveillance that had become increasingly common among law enforcement agents. But after this decision, the fine details of digital surveillance law remain extremely muddy.

The Court kicked the can down the road for now, but it is widely expected to revisit these questions soon. When it does, we urge the Justices to craft a ruling that comprehensively addresses one of the most important issues of our day.

(Image via Creative Commons)

 

 

About the author  ⁄ Marc Horowitz

Marc is the Creative Director at BrickHouse Security and the Editor of the BrickHouse blog. He’s a former Editor-in-Chief at Hachette Filipacchi Media and has written about technology and general interest topics for a number of major national print and online publications, including The New York Times, Popular Science, Popular Mechanics, The Economist, The Village Voice and many others. A native New Yorker, Marc lives in NYC’s West Village. His passions include travel, skiing, food, books, film, live music, comedy and irony.

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