On November 8, 2011, the United States Supreme Court heard oral arguments in United States v. Jones, a case involving the warrantless placement of a GPS device on Antoine Jones’ vehicle by law enforcement and the subsequent tracking of Jones’ movements in his vehicle. While the Court has not yet delivered a ruling, the arguments brought up both by counsel and the justices provide insight into the critical issues of privacy at stake. These issues include the fear of giving law enforcement too much leniency in their tracking procedures and the question of whether GPS reveals any information that is not normally exposed to the public.
United States v. Maynard (United States v. Jones): D.C. Circuit Decision
The case currently before the Supreme Court arose out the D.C. Circuit’s decision in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) cert. denied, 131 S. Ct. 671, 178 L. Ed. 2d 500 (U.S. 2010) and cert. granted, 131 S. Ct. 3064 (U.S. 2011). Maynard addressed the appeal of Antoine Jones and Lawrence Maynard regarding their convictions for conspiracy to distribute cocaine, and possession with intent to distribute. Id. The D.C. Circuit held that the lower court had erred in admitting evidence obtained by law enforcement agents through the use of a GPS device placed on Jones’s vehicle and thus reversed Jones’s conviction while separately affirming Maynard’s conviction. Id. at 568.
In its analysis of whether or not to admit the evidence obtained from the GPS device, the D.C. Circuit set the stage for the case currently before the Supreme Court. Jones argued that the police had violated the Fourth Amendment’s prohibition of “unreasonable searches” when they installed a GPS device on his vehicle without a valid warrant and tracked his movements for four full weeks. Id. at 555. Specifically the court questioned (1) whether the use of GPS indeed constituted a search against Jones’s “reasonable expectation of privacy,” (2) whether Jones’s locations recorded by the GPS constituted private information, and (3) whether Jones could have properly held a reasonable expectation of privacy for his movements in the four weeks police tracked him. Id. at 555-565.
The court’s key argument was that the totality of Jones’s movement tracked by the GPS device over the four weeks indeed constituted private information not exposed to the public. The court reasoned that “unlike one’s movements during a single journey, the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. [And], the whole of one’s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more—sometimes a great deal more—than does the sum of its parts.” Id. at 558.
In their amicus brief, the American Civil Liberties Union (ACLU) of the Nation’s Capital and the Electronic Frontier Foundation (EFF) voiced their concerns for the broader implications in Jones’s conviction and warned against the possible abuse by law enforcement of their power to continuously track citizens’ physical location without a warrant justifying such surveillance. While the D.C. Circuit agreed with the amicus and reversed Jones’s conviction, the Supreme Court’s pending decision could grant law enforcement the blanket GPS tracking ability that the ACLU and the EFF fear.
United States v. Jones: Supreme Court Oral Arguments
During oral arguments, the Justices made clear that they understood the concerns articulated in the ACLU’s amicus brief and repeatedly asked counsel for both sides where the line should be drawn regarding the use of GPS to track suspected criminals. In addition, the Court also questioned whether Congress or the individual state legislatures should instead determine the exact procedures regarding the use of GPS tracking. United States v. Jones, No. 10-1259, official oral argument transcript, 51-53.
Michael Dreeben, arguing on behalf of the United States, stated that the Court’s past decisions authorized the ability to track citizens’ movements in vehicles on public roadways because they could not reasonable expect privacy while traveling in public. Id. at 20. Justice Breyer noted a significant difference between the tracking traditionally done by law enforcement agents—rarely following a suspect 24 hours a day—and what could be accomplished by GPS devices. Id. at 13.
Speaking to the practical effect of a reinstatement of Jones’ conviction, Chief Justice Roberts asked of the counsel for the United States “So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?” Id. at 10.
Stephen Leckar argued, on behalf of Antoine Jones, that such GPS tracking should inherently be viewed as an unreasonable invasion of privacy because the human element of the surveillance has been removed. Id. at 43. While Leckar did not argue that law enforcement should be limited to using less efficient means of tailing suspects, Leckar did state that the removal of the human element goes beyond the type of surveillance society expects when driving on public roadways. Id.
Addressing the very issue of societal expectations, Justice Alito rhetorically questioned whether technology, including GPS, has changed people’s expectations of privacy. Id. Considering the future, Justice Alito stated: “Suppose we look forward 10 years, and maybe 10 years from now 90 percent of the population will be using social networking sites and they will have on average 500 friends and they will have allowed their friends to monitor their location 24 hours a day, 365 days a year, through the use of their cell phones.” Id.
Implications of the Pending Decision
As both the oral arguments in front of the Supreme Court and the analysis of the D.C. Circuit recognize, much more is at stake in United States v. Jones than Jones’s conviction. In its forthcoming decision, the Court will determine where to drawn the line between the general public’s right to privacy and the law enforcement’s interest in efficiently tracking suspected criminals.
The extremely polarized arguments put forth by counsel for both sides contain problematic implications that the Justices’ quickly seized on. On the one hand, the Justices’ expressed their unease with a blanket acceptance of law enforcement’s ability to track citizens’ indefinitely and without a warrant. On the other, the court also recognized that such GPS tracking did not vary significantly from the suspect tailing deemed legal in previous cases—apart from the added efficiency that GPS units provide.
Attorney Dreeben remarked in his closing rebuttal that the Court should decide the case of universal surveillance and broad application when such a case comes before it and to constrain its ruling in the present case to the limited surveillance of one person suspected of criminal drug activity. Id. at 57. The danger of following Dreeben’s suggestion is that a ruling constrained to the facts of Jones will nonetheless set a precedent favoring the use of warrantless GPS tracking without the benefit of broader guidance or policy considerations. This may well realize the fears expressed by the ACLU in its amicus brief.
David Kravets of Wired magazine reflected on the gravity of the Court’s impending decision by stating: “As it turns out, our culture has voluntarily joined the Surveillance Society, leaving reasonable expectations behind. And only a fool would deny that. Perhaps all that we can hope for now is the Supreme Court finding a reasonable way to save us from our unreasonable selves.”
Kraveats’ reflection correctly assesses current American culture as one of voluntarily trading privacy expectations for the latest technology. However, a distinct difference exists between voluntarily submitting location data through cell phones or social media and having law enforcement agents use devices to track citizens’ movements. This involuntary submission of data represents the key issue in Jones and the Court will likely acknowledge that Americans would generally find such tracking to be invasive of their privacy. As such, the Court will likely find that GPS tracking without a warrant violates the Fourth Amendment. Additionally, the Court will more than likely leave the question of the legality of GPS tracking with a proper warrant to either Congress or the individual states to legislate.