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Jan 25 2012

Supreme Court GPS Ruling Narrower Than Believed

It looks as though I may have jumped the gun a bit on that Supreme Court GPS ruling, mostly because I didn’t have time to read the full ruling when I initially wrote about it. Tom Goldstein at ScotusBlog writes that it is narrower than the media reports indicated. He details the three opinions and what they really mean.

I think that the correct way to understand the case is to read it as having two separate majority opinions. This odd alignment occurs because Justice Sotomayor agrees with both theories: she agrees with the majority “at a minimum” (Sotomayor op. at 1) and also seemingly agrees with the concurrence’s “incisive” conclusions (id. at 3). Justice Sotomayor does not formally join the Alito opinion, but her sympathy for its finding of a Fourth Amendment “search” in GPS monitoring is fairly obvious, as she expresses a broader view of privacy than any other member of the Court.

Here is the upshot. Five Justices join the holding of the “majority” opinion (per Scalia) that by attaching and monitoring a GPS device the police conduct a “search”; four Justices (those in the Alito concurrence) reject that view. Five Justices join or express their agreement with the portion of the “Alito” opinion concluding that the long-term monitoring of a GPS device violates a reasonable expectation of privacy; four Justices (those in the majority, minus Sotomayor) leave that question open.

That alignment of Justices importantly leaves two questions unanswered. First, does the “search” caused by installing a GPS device require a warrant? The answer may be no, given that no member of the Court squarely concludes it does and four members of the Court (those who join the Alito concurrence) do not believe it constitutes a search at all.

Second, assuming no warrant is required for installation, is a warrant required for short-term monitoring of the GPS device? Again, the answer may be no, as the majority conspicuously avoids addressing this issue and four members of the Court (again, those who join the Alito concurrence) squarely say that the answer is “no” (Alito op. at 13). Justice Sotomayor alone says that this scenario “will require particular attention.”

Note that the government has to prevail on both of those later questions. (If a warrant is required to install the device in the first place, then whether it could be monitored for a short time without a warrant is essentially an academic question.) But I think that there is an excellent chance that it will do so.

The real fight is over the first question of the installation. Only one member of today’s majority has to adopt the view that the “search” of installing the GPS is sufficiently minor to not require a warrant. Whether that happens will depend on whether every member of today’s majority is willing to extend the reinvigoration of a property-rights model of Fourth Amendment privacy to also require a vigorous application of the warrant requirement. Justice Sotomayor is, and I expect Justice Scalia agrees. The others are an open question. If no warrant is required, then it seems quite likely that one member of the majority (which is composed of conservative members of the Court) would join the four Justices in Alito’s concurrence to hold that short-term monitoring is not a search at all.

As a result, I think that although the government lost Jones 9-0, it did far better than everyone has recognized so far. I believe that it is more likely than not to prevail in a later case in which it installs a GPS monitor without a warrant and tracks the individual for only a couple of days.

But Goldstein does seem to think that Sotomayor’s much broader opinion may ultimately prove to be important in future decisions. That would be a very good thing. And it’s also still important that the government lost the basic fight over whether the attachment of a GPS device to a car is a search under the Fourth Amendment.

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  1. 1
    Abby Normal

    I think this is, at least partially, an example of what I wrote about during Sotomayor’s confirmation, that she’s the only Justice with a reasonable level of understanding and comfort with modern technology. Now the Supreme Court tends to rule very narrowly. But I can’t help thinking that if the other Justices were more conversant with technology then Sotomayor wouldn’t have been the loan voice in that third opinion.

  2. 2
    The Lorax

    What about an analogy? They can’t tap your phone without a warrant, right? Even if they only monitor for “a couple of days”? They can’t read your email, or open your snail mail, or spy on you, even if only for “a couple of days”. I don’t see the difference between them; they’re tracking your life, obtaining information on your activities, without permission. Just because they aren’t walking into your house and looking around doesn’t mean they aren’t seeking information about your habits.

    But anyway, that’s just my opinion.

  3. 3
    lynxreign

    If placing a GPS tracker on a car isn’t considered a “search” then it should be perfectly legal to do the same to police cars, right?

  4. 4
    d cwilson

    First, does the “search” caused by installing a GPS device require a warrant? The answer may be no, given that no member of the Court squarely concludes it does and four members of the Court (those who join the Alito concurrence) do not believe it constitutes a search at all.

    This may be hairsplitting. If five justices conclude that it’s a search, then wouldn’t it be true that the rules for when the authorities can put a GPS unit on a car are the same as for any other kind of search?

  5. 5
    eric

    The real fight is over the first question of the installation. Only one member of today’s majority has to adopt the view that the “search” of installing the GPS is sufficiently minor to not require a warrant.

    Pragmatically, the horse may have already left the barn on this one. E-911 legislation requires all cell phone operators to have the ability to track phone location built into their systems. This capability is normally off, and is turned on (and data fed to the government) at government request. Ostensibly, so the police or an ambulance can find you when you call 911.

    Now, one can split hairs and say that (1) this case is about some additional tracking device police want to add, and (2) cell phone purchase is voluntary. However, in practice, the government has already “installed” tracking capability on most of us.

    [Lynxreign] If placing a GPS tracker on a car isn’t considered a “search” then it should be perfectly legal to do the same to police cars, right?

    I think this is an excellent way to approach the problem. But why stop at police? Add political appointees, Congresscritters and Supreme Court Justices to the list, and maybe all three branches of government will suddenly discover that they’re opposed to it.

  6. 6
    NoVaRunner

    @2 The Lorax

    I think the Court might see a difference between monitoring for a day or two and monitoring for a month, because the latter is far more intrusive, and could use that rationale to require a warrant in the latter circumstance.

    On the other hand, a warrant is required whether they just want to search your coat closet or your whole house, even though the latter is far more intrusive.

    I think the only thing clear about this is how confusing it is…but Ed’s right, that attaching a GPS is now considered a “search” is a good thing.

  7. 7
    Ichthyic

    They can’t tap your phone without a warrant, right? Even if they only monitor for “a couple of days”? They can’t read your email, or open your snail mail, or spy on you, even if only for “a couple of days”. I don’t see the difference between them; they’re tracking your life

    ah, but the difference in their minds is likely that tapping a phone gives immediate access to what normally would be considered privileged information, thus requiring a warrant to override the right to privacy.

    using a tracker on a vehicle only gives you the same information that could be gotten if you followed it with another vehicle, which isn’t invading privacy or giving access to privileged information.

    no, I think the issue should focus on private property. Like you mentioned, how would the police deal with the public putting even something like a bumper sticker on their cars without permission?

    I recall many states have laws even prohibiting people from putting flyers on your windshield.

    there obviously is a general sense that there should exist laws to protect one’s private property from “invasion” or modification without consent.

    the issue should indeed focus on that, IMO.

    but then, it’s ALREADY gone to SCOTUS, so is there actually a point to continuing to debate it?

    will it come up for review again?

  8. 8
    eric

    no, I think the issue should focus on private property.

    Your approach would make it legal for the police to use the cell phone tracking capability that already exists any time, any where, for any reason or for no reason at all. Because telling Verizon or T-mobile to forward your location data does not interfere with your property at all.

    So in essense, your approach allows the police to track 90% or more of citizens any time they want. And not just in some hypothetical future, but today, in reality.

  9. 9
    Ichthyic

    Your approach would make it legal for the police to use the cell phone tracking capability that already exists any time, any where, for any reason or for no reason at all.

    to be clear, you’re talking about the locator ability, not an actual tap, yes?

    if so, that’s a good point, but then you would have to compare it to police powers utilizing pre-existing locator technology built into cars.

    which does exist already, but is a separate issue from physically attaching a locator AFTER the car has been purchased by a private party.

  10. 10
    Ichthyic

    So in essense, your approach allows the police to track 90% or more of citizens any time they want. And not just in some hypothetical future, but today, in reality.

    you act like this is some scary new thing?

    you yourself can “track” anyone you wish, legally, any time you want, and have been able to do so since you could walk.

    all you have to do is follow them.

    likewise, nothing stops police from following you wherever you go in public.

    the only difference with attaching a tracker is that it is a direct intrusion upon your private property.

  11. 11
    Chris from Europe

    likewise, nothing stops police from following you wherever you go in public.

    But why should it be legal for the police to follow unsuspicious persons without any reason? Shouldn’t either a warrant or a clear indication of an imminent criminal action be necessary?

    If the only place safe from baseless surveillance is private property, how much is freedom in that system worth? Who wanted to live in such a system?

  12. 12
    Ichthyic

    But why should it be legal for the police to follow unsuspicious persons without any reason?

    because it’s public space?

    they can’t follow you into your house though… without a warrant or probable cause.

    Say I live next door to you. We work at the same place, and we both walk to work.

    I typically follow you to work every day.

    should that be illegal?

    now then, if, for some bizarre reason, I walk up to you, and slap a gps unit on you so I can follow you more easily, I have intruded upon your private person. At that point, it borders on assault in most states in the US.

    also, there are separate laws that come under the form of “harassment” if you as an individual feel that police are attempting intimidation by following you.

    point is, you have no right to privacy… in public, except on your person, or wrt to your private belongings.

    still seems a perfect application of this principle to require police to get a warrant to attach ANYTHING to you, or your private property, period.

    so, rather than approaching it from the issue of search and seizure, I still think it would be consistent to apply the standard rules regarding private property to this issue.

    this gets right back to what the OP expressed with:

    The real fight is over the first question of the installation.

    It indeed can be focused solely on that issue, and still utilize existing law to conclude that police must get a warrant before modifying ANY private property.

    attaching a gps device would be modifying private property.

    if you want to deal with the idea of already existing tracking technology, you might adapt that to say the police would be modifying the intended USE of the private property for their own ends, which would also necessitate a warrant.

  13. 13
    Ichthyic

    If the only place safe from baseless surveillance is private property, how much is freedom in that system worth?

    ever used Google Earth?

    Who wanted to live in such a system?

    I don’t want to live on this Planet any more!

  14. 14
    Chris from Europe

    Do you seriously argue that this is equivalent to state surveillance?

    I have used Google Earth and it isn’t exactly real-time and doesn’t provide movement profiles.

  15. 15
    Chris from Europe

    because it’s public space?

    And so you lose your rights and the state has every power? Tracking, following people for a substantial time is not the same as simply checking someone. Why should innocent citizens be subjected to the possible mental burden of having the police follow you around?

    I typically follow you to work every day.

    should that be illegal?

    There are conditions under which it should be and for what a restraining order is for. Because the correct example would be a stalker, not a normal neighbor. If you follow me because we have the same route, it isn’t the same as following me because you want to observe my actions.

  16. 16
    Chris from Europe

    Okay, I didn’t read the comment 12 up to harassment.

    still seems a perfect application of this principle to require police to get a warrant to attach ANYTHING to you, or your private property, period.

    As you stated and implied, in a modern world it’s hard to escape tracking thanks to ubiquitous devices violating your privacy. You may not be able to withhold consent, as the smartphones, cameras etc. may not be your own.

    With this standard traditional protections would become worthless if you restrict it to one’s private property. Don’t you think restrictions on state power have to be developed for the modern technology that preserve the spirit of the original protections?

  17. 17
    Ichthyic

    There are conditions

    yes, and those are already codified. It does not mean it’s illegal for me to follow you.

    Okay, I didn’t read the comment 12 up to harassment.

    right.

    in a modern world it’s hard to escape tracking thanks to ubiquitous devices violating your privacy.

    depends on your definition of privacy.

    You may not be able to withhold consent, as the smartphones, cameras etc. may not be your own.

    now THERE you have an interesting point, and I’d probably end up agreeing with you 100% and using modern software EULAs to illustrate the point.

    However, this is OT from the what the judges were ruling on, which in fact is placing an external tracking device on your private property.

    which, btw, even leased items have private property rules that still apply, since as the registered leasee, you are obligated to protect that property from damage, thus that obligation also gives you similar rights as if you owned it outright.

    which of course, is why you can mortgage your home up past the gills, and still call it “your private home”, and the cops still have to get a warrant to search it (and they don’t even consult your lender).

  18. 18
    eric

    Ichthyc:

    likewise, nothing stops police from following you wherever you go in public.

    the only difference with attaching a tracker is that it is a direct intrusion upon your private property.

    There is a significant quantitative difference in the amount of attention being paid to someone for whom the police have no reasonable grounds to suspect is engaged in criminal activity.

    I have no problem with the law making doing ‘a lot’ of something illegal while doing ‘a little’ of it is legal. The law already does this regularly. Think EPA regulations on emissions. Think pat down vs. strip search. Think drinking and driving, or the CA rules on dope. Think wine given to 16 year olds in church. Think excessive force rules.

    Your argument rests on such quantitative distinctions not being a good basis for law. When in fact the law uses them all the time, and its a utterly fatuous argument based on a factually incorrect premise to think that normal police surveillance of an area legally justifies GPS tracking.

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