The U.S. Constitution protects people from unreasonable government searches, but does it prohibit the government from using GPS technology, without a warrant, to track people’s movements? We are reminded that police officers must get a search warrant to protect against claims of unreasonable searches that would invalidate any evidence collected. Last month the Supreme Court addressed the topic of warrantless GPS tracking.
In 2004, Antoine Jones, a Washington, D.C. nightclub operator, came under suspicion for trafficking narcotics. Without a valid warrant, the U.S. government installed a GPS-tracking device to the underside of his vehicle while the car was parked on the street outside his house, and then during a four-week period, authorities compiled more than 2,000 pages of location data. This information was used at trial as evidence to convict Jones, who appealed the case all the way to the Supreme Court.
Can the government, indeed, attach a GPS-tracking device to a person’s car without first getting a warrant? The Court unanimously said no. However, the reasoning behind the decision raises some concerns about how the government might use GPS technology in the future to pry into the privacy of its people.
There are two parts to the Constitutional prohibition against government unreasonable searches. The first prevents the government from physically intruding into constitutionally protected areas, like a person’s house, to obtain information. The second protects people’s “reasonable expectation of privacy.”
The opinion of the court was split between the majority opinion (five judges), and a minority concurring opinion (four judges). The majority opinion said that because the government had physically attached the device to Jones’ car outside his house (and not, for example, in an open field), it constituted an unreasonable search.
The concurring opinion said that because the GPS device was small and did not interfere with the operation of the vehicle, it did not constitute a search. Yet, Jones’ reasonable expectation of privacy was violated because four weeks of GPS tracking was too long. The concurring opinion said that a short intrusion into a person’s privacy is to be expected because the price people pay for advancements in technology is a diminished privacy right. Here, said the concurring opinion, the government monitored a bit too long and therefore it constituted a search requiring a warrant.
Here is where the dangerous proposition lies. Implicit in the opinion are two ideas. One, that perhaps the government can attach a GPS device to a person’s vehicle away from his/her house without a warrant; and second, that perhaps the government can perform the tracking for a shorter period of time without a warrant.
We know the time is coming when all new cars will be equipped with GPS devices — allegedly to assist in the recovery of stolen vehicles and in emergency situations. Furthermore, carrying a mobile device outfitted with a GPS is all the more common. Have we traded our reasonable expectation of privacy for these technological advances? With the precision of GPS location data, a great deal about a person’s life can be determined. The car we drive also goes to the doctor, the motel room, the nightclub and the union meeting.
The Court’s decision applies to this one set of facts and it sets a precedent, but it creates more uncertainty than it settles. It may be that this 9-0 decision will be sufficient to deter warrantless GPS tracking of any kind; or perhaps it left the door open for more government surveillance. The answer might be for citizens to pressure Congress to set clear privacy boundaries by way of legislation specifically limiting government GPS tracking, and other similar technology-aided searches, without a warrant.
While the current scenario is far from what we might see in a chapter from George Orwell’s 1984, the demise of liberty begins with the toleration of government intrusion just one bit at a time. Some might argue that a person’s public movements are fair for anyone to observe. However, when it reaches the level of precision that satellite GPS location data offers, it must be deemed a definite intrusion into a person’s personal privacy.
Raul Magallanes runs a Houston-based law firm focusing on telecommunications law. He may be reached at +1 (281) 317-1397 or by email at raul@ rmtelecomlaw.com.