U.S. Supreme Court’s GPS Decision Avoids Real Issues

This Monday, the U.S. Supreme Court announced its decision in U.S. v. Jones, both addressing and evading key concepts of privacy in relation to the Fourth Amendment and the ways in which emerging technology affects such privacy. The Fourth Amendment, which protects people from unreasonable searches and seizures “in their persons, houses, papers, and effects,” is the reason police officers must — with few exceptions — obtain warrants before searching someone’s house or car. In Jones, police officers obtained a warrant to attach a GPS tracker to a suspect’s car. Even though the police obtained the warrant, they waited until it expired and then attached the tracker before leaving it on for four weeks. When Jones sought to have the collected data banned from the evidence in the case, the prosecution argued that a GPS tracker doesn’t need a warrant, because the movements of a car through public streets is public information. In other words, Jones didn’t have a reasonable expectation of his car to go unobserved this way.

Total tech heads

The Supreme Court disagreed, and unusually, did so with a unanimous decision; however, the justices markedly disagreed on the reasons that led them to this decision. Justice Scalia chose to avoid the entire issue of whether there exists a reasonable expectation of privacy related to GPS tracking. Instead, Scalia’s opinion was based wholly on the fact that there was a physical intrusion onto Jones’s car, which falls squarely into the Fourth Amendment category of “effects.” Because this physical intrusion was made to gather information, it was a search that needed a warrant. Justice Sotomayor, agreeing with the majority ruling and its reasoning, also considered it crucial to discuss the issue of reasonable expectation of privacy and how new technology affects such expectations. Sotomayer understands that GPS tracking and similar intrusions won’t always have this element of physical intrusion. For instance, although GPS tracking may provide technically public information, the detailed nature of this information and the way the information is collected can expose private, intimate details of a person’s life (think visits to a psychiatrist, abortion clinic, night club). These seemingly reasonable searches by the government can easily become unreasonable searches.

Another opinion, drafted by Justice Alito and joined by Justices Breyer, Ginsburg, and Kagan, based its approach entirely on the reasonable expectation of privacy and purposefully avoided discussing the physical intrusion element of affixing the tracker to Jones’s car. Alito stated that as technology changes, mostly in ways that make intrusions upon privacy easier and cheaper, the law must acknowledge these changes. He brought up the issue of wiretapping and how courts in the 1920s held that if this was done without physically invading a person’s home, it was legal. The courts later acknowledged the new reality that it was possible to invade a person’s privacy without physically entering that person’s home or personal property, and admitting this led to federal and state wiretapping statutes.

The majority opinion in this case has gone out of its way to limit its scope. Cheap and widely-available technology available now can accomplish intrusion without physically entering, or even touching, your personal property. Privacy implications of such technology may have been brushed aside for the time being here, but this isn’t an issue that can be put off for long.