In June I commented on the recent decision of the Circuit Court of Appeals, United States v. Jones, that was argued in the United States Supreme Court. (See GPS Tracking: Is Big Brother Violating the 4th Amendment?) At issue was the constitutionality of police use of secretly planted GPS devices without first obtaining judicial authority with a search warrant application. The law had been in a state of flux. Civil libertarians were arguing that surreptitious tracking was an invasion into a citizen’s Fourth Amendment expectation of privacy. Prosecutors argued that there was no invasion of the home or any other protected space of a target. Rather, the device merely tracked a vehicle’s movements on the public highway. They contended that no one could expect that his movement on a highway in a car is not viewable by all who pass. Undercover surveillance vehicles could follow such a vehicle and report with impunity the areas where the car traveled. To require on the ground, human surveillance ran the risk of discovery.
We have innocently become acquiescent to our phone carriers being able to identify areas where our phones have been through their own GPS technology. Many are unaware that they are broadcasting their locations with each use of the phone. Most don’t probably care, particularly if you are law abiding and not committing crimes. In a recent murder case my partner tried GPS triangulation was used by the prosecution to demonstrate that our client was in very close proximity to a remote murder scene shortly after the victim went missing from her job.
In addition to Jones’ personal counsel, a coalition of defense organizations and civil libertarians banded together and filed an Amicus Curiae (friend-of-the-court) brief. An amicus brief is permitted on application to an appellate court by groups or persons claiming a substantial interest in the appeal. Usually, a court will only receive written and oral arguments from actual parties to the controversy. One must have what the law refers to as “standing”– that is a direct interest in the litigation, or one whose property rights or persona;l constitutional rights are directly affected by the case.
In its amicus brief the group, led by the National Association of Criminal Defense Lawyers (NACDL) argued that the use of GPS devices without the authority of a judicially issued search warrant not only implicated the target’s Fourth Amendment privacy rights but also associated privacy rights protected by the First Amendment.
In authoring a majority 5-4 decision, Justice Antonin Scalia noted, “The Government physically occupied private property [the suspect's automobile] for the purpose of obtaining information. 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.” In a tactical miscue prosecutors argued before the Court that the intrusion of a tracking device was trivial, actually conceding that it would allow tracking of the justices’ own vehicles. Nothing like personalizing the proffered harm before the tribunal!
Many see this as paving the way for a number of major privacy decisions in cases pending before the Court on issues involving email and cellphones. While the Framers of the Constitution could never have foreseen the evolution of technology and communication devices, nonetheless they forged a document in the Constitution that is fluid and allows for the change in times from 1791.
The decision does not forbid the use of GPS tracking. It merely interjects a review by a neutral and detached magistrate whose findings must be based upon reasonable grounds to believe that the use of the device will lead to information involving criminal conduct. George Orwell will rest easier in his grave knowing that Big Brother must still pay heed to the Bill of Rights.