Today marked a big win for privacy advocates. The U.S. Supreme Court handed down a ruling on the question of whether it was Constitutional for police to attach a GPS tracking unit to someone’s vehicle without their consent, and without a warrant. The answer, in United States v. Jones was a resounding NO, even though that isn’t immediately evident from the 5-4 decision. It turns out that, while there were five votes affirming the lower court’s decision to overturn the Antoine Jones’s conviction, the other four also would have voted to overturn it, but on different grounds. It owes to the complicated nature of Supreme Court decisions, but the end result is that police must show reasonable cause before remotely monitoring a suspects movements for weeks on end.
“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,’ ” said Justice Antonin Scalia, writing for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.
As mentioned above, however, the other four justices didn’t so much vote against overturning the conviction, as they argued that it should be overturned under a different Constitutional principle than the one used by the majority. Rather than finding that the placement of the tracker violated the defendant’s right against unlawful search and seizure under the 4th Amendment, they contend that the 28+ days when the defendant’s movements were tracked violated his reasonable expectations of privacy under the 14th Amendment. Justice Sotomayor’s opinion appeared to walk the line between Justice Scalia’s and Justice Alito’s concurrence, arguing that the act of physically placing the device on the defendant’s vehicle was sufficient grounds for her to find his rights violated. But, she went on to explain that as such physical intrusions became less necessary in the digital age, there would be ample room for the concurrence’s argument to take hold. “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.”
This opinion should serve as a warning to law enforcement, since all nine justices expressed their concerns about the use of GPS technology, but we’ll have to wait for another case to find out just how far they will be willing to go to protect citizens’ privacy from the government’s use of technology.