Analysis (updated to 2:05 p.m.)
Amid a disagreement about what a privacy invasion meant in 1791, but with a strong embrace of privacy in the electronic age, the Supreme Court on Monday suggested that police probably should get a warrant before they physically attach an electronic monitor — like a GPS — to a car or truck, while leaving some doubt about how long such a device may be used, and about what kinds of suspected crimes allow its use. In effect, the Court seemed to have launched years of new lawsuits to sort it all out. The choice Monday was between a minimalist approach, one in the middle, and an expansive view of Fourth Amendment privacy. Each had support among the Justices, but counting the votes was a bit tricky.
The most sweeping argument about constitutional protection against government monitoring with sophisticated new devices came in an opinion by Justice Sonia Sotomayor, but that represented — at least for now — only her views. The narrowest view (which Sotomayor said she also supported, at least this time) came in the opinion for the Court by Justice Antonin Scalia, and that is the five-vote result that clearly put police and federal agents on notice that it would be smart to get a warrant before they attach a monitoring device to a vehicle during a criminal investigation. Approximately in the middle was the view of Justice Samuel A. Alito, Jr., which attracted perhaps four-and-a-half votes — the half-vote being that of Sotomayor, who would have gone further.
The Court in recent years has shown some concern about how new technology may threaten traditional personal privacy, while at the same time indicating that it wants to proceed with caution in crafting hard-and-fast constitutional limits on such potentially Orwellian devices. The case of United States v. Jones (docket 10-1259) was the Court’s first look at the Fourth Amendment implications of police use of the Global Positioning System — a satellite-linked technology that enables detection of the location of an object or a person carrying a device within a few feet of absolute accuracy. Its increase in law enforcement has grown rapidly, and the Court’s new ruling showed a strong sense of the potential social cost of its unrestricted use.
The Court flatly rejected the government’s argument that it was simply not a search, in the constitutional sense, to physically — and secretly — attach a small GPS tracker on the underside of the car used by a man, Antoine Jones, who was a principal target of an investigation into a drug-running operation in Washington, D.C., and its suburbs. The device was installed without a warrant (one had been issued, but it ran out before it was put on the Jeep Cherokee and, in any event, it was limited to Washington, and the device was installed in Maryland). And, once installed (and serviced when the batteries ran down), it remained on the Jeep around the clock for 28 days. The 2,000-page log of where Jones had driven the Jeep was used to convict him of a drug-trafficking conspiracy, leading to a life prison sentence and an order to forfeit $1 million in illegal drug proceeds. One place where the device showed Jones had visited was a “stash house” where $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of crack cocaine turned up.
Given the complexity of the voting pattern, and what the votes actually supported or failed to support, it nonetheless was clear that the Court was unanimous in one respect. It upheld the result — but no more than the result — of a D.C. Circuit Court ruling that Jones’s Fourth Amendment rights had been violated.
Justice Department lawyers, trying to salvage their case in the Supreme Court, had argued that the electronic monitoring of Jones — even if it was a search — did not violate the Fourth Amendment because the search was based upon “reasonable suspicion, and indeed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Justice Scalia said the Court would not consider that argument, since it was not raised in the lower courts and the D.C. Circuit did not deal with it. “We consider the argument forfeited,” Scalia wrote. That meant, in practice, that Jones’s conviction was overturned, as the D.C. Circuit had ruled.
Because Scalia made mention of that alternative argument, however, it appeared likely that federal prosecutors will attempt to use it in other cases involving the use of the GPS, when the investigators had not obtained a warrant. Some caution might be in order, though, because Justice Sotomayor’s vote was necessary to make even that part of the Scalia opinion a majority-supported result, and her separate opinion might be read to raise some doubt about her enthusiasm for that argument.
Sotomayor interpreted the Court’s ruling as a narrow one, saying that it was limited to a conclusion that “the government’s physical intrusion on Jones’ Jeep” was a search under the Fourth Amendment. But she also noted that she agreed with the separate Alito opinion that the use of GPS technology over a prolonged period of monitoring will impinge — in at least some cases — on an individual’s constitutionally protected “expectation of privacy.”
Moreover, much of her opinion was a projection of her views on that privacy expectation in the face of such technology’s capacity to intrude. In a future case, she indicated, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on….I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse….”
She, her opinion indicated, would even go further, saying that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties…This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
Justice Alito’s concurring opinion, representing the views of himself and three other Justices, challenged the Scalia opinion as “unwise” for relying — in an originalist sense — on what constituted a “trespass” that invaded privacy at the time the Fourth Amendment was added to the Constitution in 1791 as part of the Bill of Rights. The Founding generation, Alito wrote, could not have imagined GPS technology. So, he argued, the ruling in this case should turn on the question of whether individuals have a “reasonable expectation of privacy” that could be compromised by the use of such devices.
There were two qualifications in the Alito opinion’s embrace of that approach. Such privacy would be intruded upon, he wrote, if there were “longer term GPS monitoring,” and that would be true for “most offenses” that were under investigation. Those two apparent limitations would seem to mean, in practice, that short-term GPS monitoring might not intrude on Fourth Amendment privacy, and the investigation by police and federal agents of some crimes with such a device might not, either. The opinion did not spell out what kinds of crimes would be serious enough to allow the use of a GPS device, remarking only that that might be the situation with “extraordinary offenses.” That might have been a reference to, say, terrorist crimes.
The Scalia and Alito opinions clashed, almost comically, over whether there was a 1791 equivalent of the kind of privacy invasion that GPS devices might threaten under a theory that they involved a “trespass” on private property. Back then, Scalia suggested, “a constable” might conceal himself “in the target’s coach in order to track its movements.” Alito countered that “this would have required either a gigantic coach, a very tiny constable, or both — not to mention a constable with incredible fortitude and patience” — a reference to the fact that, in the case before the Court, the monitoring went on 24 hours a day for 28 days.
The Scalia opinion had the support of Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy and Clarence Thomas, in addition to Sotomayor’s notation that she joined it. It thus did represent a majority declaration. No other Justice joined the Sotomayor concurrence. The Alito concurrence was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Elena Kagan.