On January 23, 2012, the United States Supreme Court handed down its decision on United States v. Jones, No. 10-1259, 2012 BL 14420 (U.S. Jan. 23, 2012), regarding the warrantless use of a GPS tracking device by law enforcement to track the actions of a suspected criminal. This author previously covered the D.C. Circuit’s decision and the oral arguments heard by the Supreme Court last November. After oral argument, this author predicted that the Court would find that GPS tracking without a warrant violates the Fourth Amendment. While the Court found that in this case the Government had violated Jones’s Fourth Amendment rights, the ambiguous majority opinion and concurrences have left the public questioning the implications of the decision beyond the facts of this case.
The Opinion: Justice Scalia
Delivering the opinion of the court, Scalia holds that the law enforcement’s placement of a GPS device on a vehicle and then using that device to track the vehicle’s movements constituted a “search.” Id. at *3. Notably, Scalia — joined by Chief Justice Roberts and Justices Kennedy and Thomas as well as Justice Sotomayor in part through her concurrence — found that by using the GPS tracking device, the Government had “physically occupied private property for the purpose of obtaining information” such that the “physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id. at *4. Scalia’s majority focuses its analysis on the jurisprudence of common-law trespass and takes an originalism approach to the Fourth Amendment — focusing on what the authors of the Amendment intended to protect against. Id.
This majority opinion takes into consideration the Katz v. United States, 389 U.S. 347 (1967), reasonable-expectation-of-privacy test. The Katz test looks beyond the Fourth Amendment to determine if a Government’s actions violate a citizen’s reasonable expectation of privacy such that an unprotected search has occurred. However, Scalia’s opinion criticizes Justice Alito’s concurrence for its focus on exclusively applying the Katz test without consideration of the Fourth Amendment and its original intent. Id. at *11. On the other hand, the concurrence criticizes Scalia’s opinion for failing to deal with cases in which no physical trespass or contact occurs and the “search” only involves the transmission of electronic signals. Id. Scalia’s majority opinion addresses this issue by stating that situations not involving physical trespass “would remain subject to Katz analysis,” identical to that which the concurrence would apply exclusively. Id.
Notably, Scalia’s opinion sidesteps the issues of the length of time for which warrantless tracking (without a physical trespass) would be legal. Id. at *12. The opinion also fails to consider how the severity of offenses — for example, a suspected drug dealer as opposed to a suspected terrorist — would affect the amount of time for which warrantless tracking would be permitted. Id. Instead, the opinion chooses to leave these “vexing problems” for a future case where the search does not involve a classic physical trespass.
Justice Sotomayor, Concurring
Although Sotomayor’s concurring opinion failed to convince any other Justices to join, her opinion provides some of the most powerful commentary on the concerns that the public should have for its privacy in the digital age. See id., Sotomayor, J., concurring, at *3. In fact, Sotomayor’s concerns over the chilling of associational and expressive freedoms potentially caused by awareness that the Government could be watching citizens’ movements align closely with the joint amicus brief filed by the American Civil Liberties Union (“ACLU”) of the Nation’s Capital and the Electronic Frontier Foundation (“EFF”) in the D.C. Circuit. For instance, Justice Sotomayor worries that if citizens might choose not to attend certain political, cultural or religious events for fear of being publicly associated with a group or idea that they would only choose to associate with in private. Justice Sotomayor suggests that it may be time for the Court “to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties . . . [an approach] 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.” Id. at *5.
While Justice Sotomayor agrees with the majority that the GPS tracking in this case constituted a “search,” her concurrence goes on to support Justice Alito’s concurrence’s strong stance that long-term tracking using a GPS device violates the Katz reasonable-expectation-of-privacy test, a question which the majority leaves for future Courts to decide. Id. at *3-4. At least one legal blogger has already praised Justice Sotomayor for her interest in rethinking established areas of law — such as privacy — to adapt them to “the digital age.”
The Concurrence: Justice Alito
Joined by Justices Ginsburg, Breyer and Kagan, Justice Alito’s concurrence analyzes the case solely by applying the Katz reasonable-expectation-of-privacy test. Id., Alito, J., concurring, at *1. The concurrence draws two key concerns about the majority opinion. Id. at *7. First, Alito criticizes the majority for its focus on the physical intrusion as a “search” instead of what he believes is truly important, the use of GPS for long-term tracking. Id. at *8. Alito suggests that the majority’s approach would fail to provide adequate protection to the public should the Government begin to utilize the GPS already present in newer automobiles rather than physically trespassing to place a GPS device of its own. Id.
Second, Alito’s concurrence warns that application of the majority’s opinion would lead to incongruous results between the use of GPS and the use of physical resources, such as unmarked cars and aerial assistance, to track suspected criminals. Id. For example, the unwarranted use of GPS for even short-term tracking would be deemed unconstitutional under the majority’s opinion if it involved a physical trespass to place the GPS device. Conversely, law enforcement could track a suspected criminal with extensive physical resources for a long period of time without a warrant and face no constitutional concerns. Id.
By applying the Katz test, Alito aims to avoid these complications, but even the Katz test involves some difficulty in application. Id. at *10. Since the Katz test considers what a reasonable person would consider to be an invasion of his or her reasonable expectation of privacy, the test relies heavily on an “assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations” which may or may not be true in the digital age. Id. As David Kravets of Wired magazine reflected in response to the oral arguments from last November: “As it turns out, our culture has voluntarily joined the Surveillance Society, leaving reasonable expectations behind. And only a fool would deny that.”
Alito expresses concerns that new technology and future periods of technological change may lead to significant changes in what a reasonable person expects regarding his or her privacy. The courts may thus have difficulty applying an exact standard in any case that would be anything more than a temporal grasp at a standard. Id. Therefore, Alito’s concurrence leaves the future implications of this decision to the legislature, which he views to be “well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.” Id. at *13.
Finally, Alito notes that the police may always seek a warrant if they are unsure if their investigative methods fail the Katz reasonable-expectation-of-privacy test. Id. at *14.
Implications of the “Decision”
Although the Court delivered a majority opinion, many of the questions posed by the case remain unanswered by the Court’s narrow and unclear opinion and concurrences. Certainly the Court decided that the Government has not been handed the blanket ability to track citizens’ indefinitely and without a warrant, but there is not much clarity beyond this limitation.
The Court fails to come to a majority ruling as to what time frame of tracking a suspected criminal using a GPS device would not offend the Katz test. Nor does the Court address precisely how it would rule had the Government used a vehicle’s internal GPS device rather than placing a GPS device and incurring the physical trespass deeming the tracking a “search.” As predicted in this author’s assessment of the Court’s oral argument, the Court gladly leaves the question of the legality of GPS tracking with a proper warrant to Congress and the individual states to legislate. However, Justice Alito’s concurrence notes that, to date, “Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes” so that the best the court can do is “to apply existing Fourth Amendment doctrine and to act whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.” Id. at *13.
Unsurprisingly, the Court’s Jones decision has led to confusion in the press as journalists attempt to interpret the Court’s opinion and concurrences. Much of this confusion arises out of the public’s interest in whether or not the Government needs a warrant to install and track a citizen using a GPS device. Unfortunately, the answer is a solid “maybe” and a “more likely than not” if the Government intends long-term monitoring. As Tom Goldstein stated in his coverage of the press confusion, “The inevitable impression left by at least most of these [press] pieces is that the police always have to get a warrant from a judge to use GPS tracking. That is simply not true. The question is at best unresolved, and at worst it may prove to be completely incorrect when the courts later [address] monitoring over the course of a short time.”
In regard to this case, the Court certainly came to the correct conclusion in favor of Jones. But, the Court’s ambiguity and failure to address short-term monitoring and GPS tracking with a warrant likely means that the court will soon face another similar case asking those very questions. Perhaps Justice Alito correctly assigned the duty of dealing with such questions of law enforcement procedures to Congress and the state legislatures. However, it seems that such legislative action will only arise from public outrage as to the improper use of GPS devices for tracking criminal suspects. This means that the desired legislative action depends upon the Government’s abuse of the ambiguity left by this decision.
Presently, the split in agreement among the court’s opinions suggests that short-term monitoring without a warrant would likely be deemed legal, especially if it lacked the trespass element of actually placing a device on a suspect’s vehicle. However, even the placement of the device may not prove to be much of a barrier since four members of the court already think that such placement is not even a “search.” Thus it seems likely that in a future case, another Justice would join these four in establishing a majority holding that the installation of the GPS device does not require a warrant. How “short-term” monitoring must be in order to avoid having to seek a warrant is unclear after this decision, but certainly less than the four weeks Jones was tracked in this case. In future cases where a warrant is properly executed for such tracking, Justice Alito’s concurrence suggests that the Government would be given more leeway as to the time over which they may monitor a suspect’s actions.
All in all, the Government does not appear to be much hindered by the Jones decision. The Government must simply follow procedure and receive a warrant if law enforcement wants to track a criminal suspect for an extended period of time using GPS tracking. However, based on the split of the justices and the ambiguities in the decision, law enforcement could presumably install a GPS device and monitor a suspect for several days before deciding whether or not to seek warrant for further monitoring.