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<DIV class=timestamp>September 10, 2011</DIV>
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<H1><NYT_HEADLINE version="1.0" type=" ">Court Case Asks if ‘Big Brother’ Is
Spelled GPS</NYT_HEADLINE></H1><NYT_BYLINE>
<H6 class=byline>By <A class=meta-per
title="http://topics.nytimes.com/top/reference/timestopics/people/l/adam_liptak/index.html?inline=nyt-per
CTRL + Click to follow link"
href="http://topics.nytimes.com/top/reference/timestopics/people/l/adam_liptak/index.html?inline=nyt-per"
rel=author>ADAM LIPTAK</A></H6></NYT_BYLINE><NYT_TEXT>
<DIV id=articleBody><NYT_CORRECTION_TOP></NYT_CORRECTION_TOP>
<P>WASHINGTON — The precedent is novel. More precisely, the precedent
<EM>is</EM> a novel. </P>
<P>In a series of rulings on the use of satellites and cellphones to track
criminal suspects, judges around the country have been citing <A class=meta-per
title="More articles about George Orwell."
href="http://topics.nytimes.com/top/reference/timestopics/people/o/george_orwell/index.html?inline=nyt-per">George
Orwell</A>’s “1984” to sound an alarm. They say the <A title="Link to the text"
href="http://caselaw.lp.findlaw.com/data/constitution/amendment04/">Fourth
Amendment’s promise</A> of protection from government invasion of privacy is in
danger of being replaced by the futuristic surveillance state Orwell described.
</P>
<P>In April, Judge Diane P. Wood of the federal appeals court in Chicago <A
title="PDF of the decision"
href="http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=rss_sho&shofile=10-1473_002.pdf">wrote</A>
that surveillance using global positioning system devices would “make the system
that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” <A
title="Link to the PDF of the decision"
href="http://www.ca9.uscourts.gov/datastore/opinions/2010/08/12/08-30385.pdf">In
a similar case last year</A>, Chief Judge Alex Kozinski of the federal appeals
court in San Francisco wrote that “1984 may have come a bit later than
predicted, but it’s here at last.” </P>
<P>Last month, Judge Nicholas G. Garaufis of the Federal District Court in
Brooklyn <A title="PDF of the decision"
href="http://www.wired.com/images_blogs/threatlevel/2011/08/cellsite.pdf">turned
down</A> a government request for 113 days of location data from cellphone
towers, citing “Orwellian intrusion” and saying the courts must “begin to
address whether revolutionary changes in technology require changes to existing
Fourth Amendment doctrine.” </P>
<P>The <A class=meta-org title="More articles about the U.S. Supreme Court."
href="http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org">Supreme
Court</A> is about to do just that. In November, it will hear arguments in
United States v. Jones, No. 10-1259, the most important Fourth Amendment case in
a decade. The justices will address a question that has divided the lower
courts: Do the police need a warrant to attach a GPS device to a suspect’s car
and track its movements for weeks at a time? </P>
<P>Their answer will bring Fourth Amendment law into the digital age, addressing
how its 18th-century prohibition of “unreasonable searches and seizures” applies
to a world in which people’s movements are continuously recorded by devices in
their cars, pockets and purses, by toll plazas and by transit systems. </P>
<P>The Jones case will address not only whether the placement of a space-age
tracking device on the outside of a vehicle without a warrant qualifies as a
search, but also whether the intensive monitoring it allows is different in kind
from conventional surveillance by police officers who stake out suspects and
tail their cars. </P>
<P>“The Jones case requires the Supreme Court to decide whether modern
technology has turned law enforcement into Big Brother, able to monitor and
record every move we make outside our homes,” said Susan Freiwald, a law
professor at the University of San Francisco. </P>
<P>The case is an appeal from <A title="Link to the decision"
href="http://caselaw.findlaw.com/us-7th-circuit/1046181.html">a unanimous
decision</A> of a three-judge panel of the United States Court of Appeals for
the District of Columbia Circuit, which said last year that the government was
simply seeking too much information. </P>
<P>“Repeated visits to a church, a gym, a bar or a bookie tell a story not told
by any single visit, as does one’s not visiting any of those places in the
course of a month,” wrote Judge Douglas H. Ginsburg. </P>
<P>He added: “A person who knows all of another’s travel can deduce whether he
is a weekly churchgoer, 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.” </P>
<P>Federal appeals courts in Chicago and San Francisco, on the other hand, have
allowed the police to use GPS tracking devices without a warrant. The police are
already allowed to tail cars and observe their movements without warrants, those
courts said, and the devices merely allow them to do so more efficiently. </P>
<P>Judge Richard A. Posner, writing for <A
href="http://caselaw.findlaw.com/us-7th-circuit/1046181.html%22%20%5Co%20%22United%20States%20v.%20Garcia">a
unanimous three-judge panel</A> in the Chicago case, did caution that
institutionalized mass surveillance might present a different issue. </P>
<P>Some judges say that world is fast approaching. </P>
<P>“Technology has progressed to the point where a person who wishes to partake
in the social, cultural and political affairs of our society has no realistic
choice but to expose to others, if not to the public as a whole, a broad range
of conduct and communications that would previously have been deemed
unquestionably private,” Magistrate Judge James Orenstein of the Federal
District Court in Brooklyn <A title="PDF of the deicison"
href="http://regmedia.co.uk/2010/08/31/orenstein_csi_ruling.pdf">wrote last
year</A>. </P>
<P>The case to be heard by the Supreme Court arose from the investigation of the
owner of a Washington nightclub, Antoine Jones, who was suspected of being part
of a cocaine-selling operation. Apparently out of caution, given the unsettled
state of the law, prosecutors obtained a warrant allowing the police to place a
tracking device on Mr. Jones’s Jeep Grand Cherokee. The warrant required them to
do so within 10 days and within the District of Columbia. The police did not
install the device until 11 days later, and they did it in Maryland. Now
contending that no warrant was required, the authorities tracked Mr. Jones’s
travels for a month and used the evidence they gathered to convict him of
conspiring to sell cocaine. He was sentenced to life in prison. </P>
<P>The main Supreme Court precedent in the area, <A
title="Full text of the case"
href="http://supreme.justia.com/us/460/276/case.html">United States v.
Knotts</A>, is almost 30 years old. It 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. </P>
<P>The Supreme Court ruled that no warrant was required but warned that
“twenty-four hour surveillance of any citizen of the country” using
“dragnet-type law enforcement practices” may violate the Fourth Amendment. </P>
<P>Much of the argument in the Jones case concerns what that passage meant. Did
it indicate discomfort with intense and extended scrutiny of a single suspect’s
every move? Or did it apply only to mass surveillance? </P>
<P>In the Jones case, <A title="PDF of the text"
href="http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-1259_petitioner.authcheckdam.pdf">the
government argued in a brief</A> to the Supreme Court that the Knotts case
disapproved of only “widespread searches or seizures that are conducted without
individualized suspicion.” </P>
<P>The brief added: “Law enforcement has not abused GPS technology. No evidence
exists of widespread, suspicionless GPS monitoring.” On the other hand, the
brief said, requiring a warrant to attach a GPS device to a suspect’s car “would
seriously impede the government’s ability to investigate leads and tips on drug
trafficking, terrorism and other crimes.” </P>
<P>A decade ago, <A title="Kyllo v. United States"
href="http://www.law.cornell.edu/supremecourt/text/99-8508#writing-ZS">the
Supreme Court ruled</A> that the police needed a warrant to use thermal imaging
technology to measure heat emanating from a home. The sanctity of the home is at
the core of what the Fourth Amendment protects, Justice Antonin Scalia
explained, and the technology was not in widespread use. </P>
<P>In general, though, Justice Scalia observed, “it would be foolish to contend
that the degree of privacy secured to citizens by the Fourth Amendment has been
entirely unaffected by the advance of technology.” </P><NYT_CORRECTION_BOTTOM>
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<DIV><FONT size=2 face=Verdana>Wayne A. Fox<BR><A
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