[Vision2020] The Court’s GPS Test

[Art Deco]

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November 5, 2011
The Court’s GPS Test
There were no GPS tracking devices when the framers wrote the Fourth Amendment’s prohibition against unreasonable searches. But that does not mean this sometimes intrusive technology can be used against Americans without meeting constitutional standards. 

In United States v. Antoine Jones, scheduled to be heard on Tuesday, the Supreme Court will review a ruling by the Federal Court of Appeals for the District of Columbia Circuit, which found that police officers violated the Constitution when they hid a GPS device on Mr. Jones’s car without a valid warrant and tracked his every move for 28 days. 

Reversing Mr. Jones’s conviction for conspiracy to distribute cocaine because of the illegal search, the appeals court persuasively argued that this powerful technology requires thinking differently about reasonable expectations of privacy and what is unreasonable for law enforcement officers to consider public. Surveillance that “reveals an intimate picture of the subject’s life that he expects no one to have — short perhaps of his spouse,” the court wrote, violates those expectations. 

The government contends that a person in a car driving on public roads has no reasonable expectation of privacy and has exposed his movements to observation by the police. Such surveillance, it argues, is the same legally whether police officers follow in another car or track with a beeper, which the Supreme Court has allowed without a warrant. 

A beeper, however, does not provide the police with an uninterrupted picture of everywhere an individual goes and nearly everything an individual does. As the appeals court noted, “A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.” 

In its brief to the Supreme Court, the government asserts: “Law enforcement has not abused GPS technology. No evidence exists of widespread, suspicionless GPS monitoring, and practical considerations make that prospect remote.” But that is not a constitutional standard, and is no guarantee the technology will not be broadly abused in the future. Unless the Supreme Court requires the government to get a warrant for GPS tracking, the police will be free to monitor a person’s movements without limit 24 hours a day. 


_______________________________
Wayne A. Fox
wayne.a.fox at gmail.com
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