Privacy rights scored a win at the Supreme Court Monday, but it’s not clear how big a win. In a unanimous ruling with a handful of concurring opinions, the Supreme Court ruled that police must obtain a search warrant before using GPS technology to track criminal suspects. But the Court failed to agree on much else in terms of electronic surveillance and privacy rights in the digital age, meaning this is an issue we’ll be coming back to.
In US v. Jones, a GPS device helped authorities link a Washington, D.C. nightclub owner to a suburban house he was using to stash money and drugs. That evidence led to a conviction and life in prison sentence before an appeals court overturned the conviction on the grounds that authorities needed to get a warrant before attaching the GPS device. The Supreme Court agreed.
Justice Scalia wrote the majority opinion, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor. Justice Sotomayor wrote one of the concurring opinions that agreed in outcome, though for different reasons, then the majority opinion. Justice Samuel Alito also wrote a concurring opinion in which he said the court should have gone further and dealt with GPS tracking of wireless devices like cell phones. Justice Alito was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elana Kagan.
Here was the common ground: the justices agreed that the government needs to get a warrant before physically attaching an electronic monitor to a car or a truck. But there was little agreement as to how long such a device could be used, what suspected crimes should permit its use, meaning the contours of individual privacy rights in these cases remain unclear.
If we take the opinions together we get a nice panorama of possible privacy rights and in that long-view are some promises that the 4th Amendment is not dead. Justice Sotomayor’s expansive argument in support of protecting individuals from government electronic monitoring in almost all instances demonstrates that even former prosecutors understand the abusive potential in electronic surveillance almost always outweighs cutting constitutional corners.
Normally I admire Justice Scalia’s absolutism with regard to the 4th Amendment, but here I have to say I am pleasantly surprised to Scalia him presenting the most limited argument against electronic monitoring. That’s because it suggests the rest of the Court, or at least the concurring opinions of which there were a majority of votes–Alito, Ginsburg, Breyer, Kagan and Sotomayor- have a more expansive understanding of individual privacy and the limits of governmental electronic surveillance. And that’s a good thing.
On a practical level this bodes well for privacy advocates as we will likely see host of litigation surrounding the contours of the Jones decision. But this was the Court’s first look at the Fourth Amendment implications of police use of GPS devices, despite their increased use among law enforcement and it chose not to set any bright line rules other than to tell the police that a warrant should be issued for GPS monitoring.
In the meantime, I think it’s best to view this decision more as a common-sense acknowledgement that technology has changed the way in which the government can conduct surveillance, which means we need jurisprudence that both understands technology and the nebulous nature of constitutional privacy analysis. The Court inched closer to giving us that today.
Photo from steakpinball via flickr.
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