TMCnet News
Supreme Court justices' GPS ruling breaks new ground on privacy rights [Lawyers USA](Lawyers USA Via Acquire Media NewsEdge) After punting on the issue in the past, the U.S. Supreme Court has again waded into the choppy waters of privacy protection in the digital age in a case involving the warrantless use of a GPS device on a suspect's car. But while still not ruling on the privacy issue directly, this time five justices gave a strong indication that individuals' privacy interests may be entitled to constitutional protection. That's very important in the criminal context "because of the increasing use of GPS technology by law enforcement," said Boston attorney Michelle Peirce, a partner at Donoghue Barrett & Singal. In U.S. v. Jones, a unanimous Court held that the installation and use of a GPS device by police to track a car's movements constituted a search under the Fourth Amendment. The Court was split on the basis for that conclusion. A five- member majority held that the GPS use constituted a physical trespass under centuries-old common law principles. "It is important to be clear about what occurred in this case: The government physically occupied private property for the purpose of obtaining information," Justice Antonin Scalia wrote in the opinion of the Court. "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." But in a strongly worded concurrence joined by three other justices, Justice Samuel Alito argued that the court should have reached its conclusion by examining "whether respondent's reasonable expectations of privacy were violated." "Ironically, the Court has chosen to decide this case based on 18th-century tort law. ... This holding, in my judgment, is unwise," Alito wrote. "It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial." In what may prove to be the key opinion in the case, Justice Sonia Sotomayor - who also joined in Scalia's trespass analysis - wrote a separate concurrence stating that privacy interests were also implicated and suggesting a willingness to engage in a privacy analysis in future cases involving advancing technologies. "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," Sotomayor wrote. The nearly evenly split Court illustrates the difficulty courts around the country have in applying Fourth Amendment principles to new technologies. "Our framers could never have imagined what people are able to do now," said Jeb Boatman, of counsel at the Oklahoma City firm of McAfee & Taft. Unanswered questions The case was marked by some unusual twists from the outset. As part of a broader surveillance operation, police obtained a warrant to install a GPS device on the car of suspected drug trafficker Antoine Jones. The warrant stipulated that the device be installed in the District of Columbia within 10 days. For unexplained reasons, the police waited 11 days and then installed the device in Maryland. The device tracked Jones' travels for about a month, including trips to a suspected stash house, where police were later able to recover cash, cocaine, weapons and drug paraphernalia. Jones was ultimately convicted of conspiracy to distribute cocaine, but the D.C. Circuit threw out his conviction, finding that the use of the GPS device without a valid warrant violated his Fourth Amendment rights. The Supreme Court took the case and affirmed the D.C. Circuit's ruling in a way that puts lower courts on notice that both traditional trespass principles and privacy rights can be implicated by warrantless GPS use. But that leaves lower court judges facing a difficult task. They need to figure out what kind of warrantless GPS tracking will run afoul of Fourth Amendment principles. In Jones, the surveillance lasted a month. But what if the tracking lasts for only a matter of days or hours or minutes? Jones "is a fact-based decision," noted Andrew Pincus, a partner in the Washington office of Mayer Brown and author of an amicus brief in the case on behalf of the Center for Democracy and Technology. "How far down the spectrum does the ruling apply?" 'Really rather brilliant' At first blush, Sotomayor's concurrence seems puzzling. She could have simply joined Alito's concurrence, giving the Court the opportunity to issue an opinion based on a straight expectation-of- privacy analysis. But some experts suggest that the approach she took is a more effective way of bridging the gap between old and new principles. "I think what she did ... is really rather brilliant," said Professor Renee Hutchins of the University of Maryland School of Law. On one hand, "you have the Scalia [opinion] and the property trespass holding. Then Alito's concurrence is saying it's not a property trespass at all. What Sotomayor does is say both. So she does a lovely job of solidifying the more traditional original intent camp of tort law with the forward-looking reasonable expectation of privacy camp." And while the Court has avoided taking on the privacy question head-on in the past in cases such as City of Ontario v. Quon, Alito's and Sotomayor's concurrences make clear that the Court can't - and won't - kick the can down the road much longer. "We have five justices [who] are pretty vocal that they are going to have to face the analysis that the Scalia group did not," Peirce said. "Those five are suggesting that common law trespass principles don't cut it anymore." Some of the language in Sotomayor's concurrence all but ensures that the privacy issue will come up in civil cases as well as in the criminal context. "[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties," Sotomayor wrote. "This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks." While "some people may find the 'tradeoff' of privacy for convenience 'worthwhile,'" Sotomayor continued, "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." Pincus said the Alito opinion could spur Congressional action. "There is a very clear invitation for Congress to act here," Pincus said. "He [said] this is an area where Congress will have to draw some lines, and we'll have to see whether those lines are consistent with the Fourth Amendment." Immediate effect Given the circuit split on the issue of whether a warrant is required for the police to install a GPS device, the impact of the opinion will be felt immediately in some jurisdictions. Boatman, a former federal prosecutor in Oklahoma, where the 10th Circuit had held that a warrant was not necessary, said that the Jones case "is kind of a big deal. [For] the cases in the pipeline either at the trial level or on appeal the lower courts [and] the prosecutorial agencies will have to ask, 'What do we do now?'" As for the future use of GPS devices, police have a clear mandate. "Get a warrant to install this type of device," Boatman advised. The peculiar twist in the Jones case is that the police did obtain a valid warrant. They simply failed to execute it properly. But as Alito pointed out in a footnote, the government never bothered to argue that the warrant itself was valid despite the procedural defects. "It could have been a very different case," if they had done so, Boatman said. (c) 2012 ProQuest Information and Learning Company; All Rights Reserved. |