Jones confounds the press
on Jan 25, 2012 at 11:30 am
The case involves a mildly complicated area of the law. The alignment of the Justices also left the issues unusually opaque. But the legal rules have very practical implications for ordinary Americans on a significant question of personal privacy. So describing the case correctly is important. In this post I explain how I think that the press got the case wrong.
The Court’s only holding is that the installation of a GPS monitoring device is a search. That is a different question from whether it requires a warrant and whether it requires probable cause, as opposed to a lesser standard like reasonable suspicion. The Court in Jones did not decide the government’s argument that this “search” (installing the GPS device) did not require a warrant.
Anyone who says that such a distinction is dancing on the head of a pin is wrong. That question not only determines whether the government is subject to immediate judicial oversight, but it is often also closely related to whether the search requires probable cause or instead only reasonable suspicion, which is a substantially more forgiving standard.
And anyone who says that a search always requires a warrant is wrong too. The government probably conducts fifty times as many warrantless searches a day as warrant-based searches. The government can sometimes conduct warrantless searches on less than probable cause, as when a police officer pats down someone on the street or TSA puts carry-on luggage through an x-ray machine.
Nor is the obvious implication of the Court’s holding in Jones that installing and monitoring a GPS device constitute a “search” that a warrant and probable cause are required: four members of the Court (those who joined the Alito concurrence) expressly concluded that installing the device is not even a “search” (meaning no warrant is required), so only one member of the majority would have to conclude that the installation is a legitimate “warrantless search.” The fact that the “search” here is a highly technical one – a common-law trespass that does not necessarily violate any expectation of privacy – creates the real possibility that in a later case the government will find the one vote it needs and be able to avoid having to get a warrant for the installation.
The Court came very close to deciding a second question. Four members of the Court (those in the Alito concurrence) would have held that the long-term monitoring of a GPS device at least generally violates a reasonable expectation of privacy. Justice Sotomayor wrote a broad concurring opinion of her own that is even more pro-privacy and makes it almost impossible to believe she would disagree. None of those five Justices said with complete certainty whether that search (the long-term monitoring) would require a warrant. But the nature of their reasoning – that long-term monitoring violates a reasonable expectation of privacy – strongly suggests that conclusion. And Justice Alito’s statement that when it is uncertain whether “a Fourth Amendment search” has occurred, “the police may always seek a warrant” reinforces that impression. (Note that there is no disconnect in my saying that this “search” almost certainly would require a warrant while the other “search” of installing the device would not – the Alito concurrence views the former as a substantial intrusion on privacy, whereas the Jones majority suggests that the latter is much more of a technical Fourth Amendment search.)
But here too, the Court left a significant question unanswered. It did not decide whether the short-term monitoring of a GPS device is a search requiring a warrant. Again, there is real reason to believe the government will prevail on that issue; in fact, it is highly likely. Five members of the Court (those in the majority) held that short-term monitoring is a search. By contrast, four members of the Court (those in the Alito concurrence) explicitly concluded that it is not a search. So only one member of the majority would have to agree that although it is a search, the privacy intrusion (observing travel on public roads for a period of time during which the individual might otherwise have been followed in an police car) is sufficiently minimal to not require a warrant. And the majority notably includes four of the Court’s most conservative Justices, who might be naturally disinclined to find a Fourth Amendment violation.
The real obstacle to the government winning on the question whether “short-term monitoring” requires a warrant is probably the one noted above: does the government have to get a warrant to install the device in the first place? If the installation does require a warrant, then the government’s right to monitor the device without a warrant is beside the point. But given both that four members of the Court have already said that the installation of the device is not a search (and therefore does not require a warrant) and the likelihood that a majority would say that short-term monitoring does not require a warrant (four Justices having already reached that conclusion as well), I think it is very unlikely that a majority would nonetheless hold that installation of the device still requires a warrant.
So to sum up, here is what I think it is fair to conclude about Jones. It holds that installing a GPS device is a search that may or may not require a warrant, and it strongly suggests that long-term monitoring of that device will require a warrant. But the Court does not hold that installing the device requires a warrant, and in fact the tea leaves suggest it would reject that conclusion if the device is only going to be monitored for a day or two.
Those are not fine distinctions in the real world. The question of whether and when a warrant is required is important. It is not surprising that the early press coverage of Jones focused on the warrant question, because the public knows what that means. If a governmental action is a “search” but not one that requires a warrant, the level of suspicion required may be substantially lower (reasonable suspicion rather than probable cause), and no judge oversees the government’s action.
The question whether the government can monitor a device for a couple of days without getting a judge’s permission is similarly at the heart of the public’s understanding of the case. It is seriously misleading to say that Jones holds that all GPS monitoring is a search if the government is in fact free to do so for a couple of days at least.
I summarize the opinion here again because I want to compare the reality of Jones to press coverage of the decision. Here, I want to focus on morning coverage – pieces that would have been finalized at day’s end on Monday. Reviewing the initial reactions to the decision seems unfair. For example, many pieces posted on newspapers’ websites right after the ruling was issued said that Jones requires a warrant for GPS devices. That is wrong, but it is an understandable initial mistake given the confusing nature of the opinions. But by the time final pieces are written for the next morning, there is plenty of time to get the decision right. That is particularly true because the Court did not make other significant news Monday that would have distracted reporters from figuring Jones out.
To get a fair sense of the coverage, I reviewed the stories Monday morning that were published by the major daily newspapers: the New York Times, Washington Post, USA Today, Wall Street Journal, and Los Angeles Times. I also looked at the latest versions of stories that I could find from the major wire services: the Associated Press and Reuters.
In general, I think that the coverage of Jones is bad and leaves a very misleading impression of the decision. None of the pieces correctly characterizes the ruling and its limits.
The USA Today, Los Angeles Times, Associated Press, and Reuters all incorrectly say (including in their headlines) that Jones requires a warrant. The New York Times and Wall Street Journal do not say that in terms (seemingly ducking the issue on purpose, which is not helpful given its importance), but they nonetheless leave the reader with the impression that a warrant is required: the Times indicates that “the authorities remain free to seek warrants,” while the WSJ reports that the government acted unconstitutionally in this case when it acted “without a valid search warrant.” The body of the Washington Post story says that “Scalia did not hold that a warrant was always necessary,” which is closer to correct but leaves the misimpression that he held that it is sometimes necessary; moreover, the editor created a headline wrongly saying a warrant is required.
With respect to the long-term versus short-term distinction, none of the pieces draws it clearly. The Reuters piece does correctly state that to the extent that Jones addresses monitoring, it considers “an extended period of time.” By contrast, the USA Today incorrectly says categorically that “police cannot use” GPS devices without warrants.
The upshot of the coverage of Jones is that the American public now seriously misunderstands the law on a significant issue. The inevitable impression left by at least most of these pieces is that the police always have to get a warrant from a judge to use GPS tracking. That is simply not true. That question is at best unresolved, and at worst it may prove to be completely incorrect when the courts later addressing monitoring over the course of a short time.
I find these errors surprising. The press corps carefully followed Jones. The distinction between a search and the warrant requirement received relatively little attention in the case, but it is a recurring issue in other Fourth Amendment cases. Also, the misunderstanding in the coverage about the “warrant” clause became apparent relatively early. At 12:50 pm on Monday, Orin Kerr – whose views in this area are as respected as anyone’s – had this post at the Volokh Conspiracy in which he explained that “early press reports” were “not correct” in this respect. At 4:07, I published my long-ish analysis of the decision. That isn’t to say that reporters have any obligation to read blog commentary, but this is an area in which they usually do and it would have served them well.
This is not intended as a broad knock on the Supreme Court press corps, which generally does quite a good job of thoughtfully and correctly covering important and complicated questions in very short periods of time. They are certainly better at their day job than I am at mine. But I think that the coverage of Jones was a significant failure across the board and that it is important to raise the issue.