In the upcoming Supreme Court docket, one of the most significant decisions will involve the role of judicial oversight in the use of GPS tracking devices. Specifically, in U.S. v. Jones, 131 S. Ct. 3064 (2011) the Court will decide ”[w]hether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.”
Defendant Antoine Jones was convicted of conspiracy to sell cocaine based, in part, on the use of a GPS tracking device placed on his car. The police then monitored Jones’ movements for a month. The D.C. Circuit reversed the conviction on the basis of the warrantless GPS tracking.
Jones argued the use of the GPS device violated his “reasonable expectation of privacy,” U.S. v. Katz, 389 U.S. 347, 360–61 (1967) (Harlan, J., concurring). The Katz test focuses on “whether the individual has an expectation of privacy that society is prepared to recognize as reasonable.” The judiciary provides a normative interpretation of society to determine how best to extend the obligation for warrants to situations that arise because of new technologies and new social circumstances.
Here, the Circuit Court was concerned about the 24/7 surveillance afforded to the police through the GPS tracking device. It found the constant surveillance to be different in type than the mere placing of a beeper used to follow a particular vehicle a single time, as was the case in U.S. v. Knotts, 460 U.S. 276 (1983).
Knotts is often quoted for the proposition that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Knotts, 460 U.S. at 281. But the DC Circuit rejected the analogy to tracking automobiles in public, instead choosing to analogize to the pervasiveness of an ongoing, permanent surveillance.
Other appellate courts had less concern about the GPS devices.
In U.S. v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010) the Ninth Circuit upheld the use of devices when used on seven different occasions. The case did not address the length of any particular tracking episode, but instead found that the undercarriage of a car was not an area with a protected zone of privacy and neither was the place where the device was affixed – in parking lots, streets, and the defendant’s driveway. The Eighth Circuit has suggested a similar outcome. U.S. v. Marquez, 605 F.3d 604 (8th Cir. 2010).
Similarly, in U.S. v. Garcia, 474 F.3d 994 (7th Cir. 2007), the court found the use of such devices unobjectionable. Judge Posner focused on the challenge of extending the law of Fourth Amendment Privacy by analogy:
If a listening device is attached to a person’s phone, or to the phone line outside the premises on which the phone is located, and phone conversations are recorded, there is a search (and it is irrelevant that there is a trespass in the first case but not the second), and a warrant is required. But if police follow a car around, or observe its route by means of cameras mounted on lampposts or of satellite imaging as in Google Earth, there is no search. Well, but the tracking in this case was by satellite. Instead of transmitting images, the satellite transmitted geophysical coordinates. The only difference is that in the imaging case nothing touches the vehicle, while in the case at hand the tracking device does. But it is a distinction without any practical difference.
U.S. v. Garcia, 474 F.3d at 997. Looking at the conduct rather than the technology, Judge Posner stated “[t]he substitute here is for an activity, namely following a car on a public street, that is unequivocally not a search within the meaning of the amendment.”
This analogy was rejected by the D.C. Circuit. There the opinion emphasized the practical limitations. “Continuous human surveillance for a week would require all the time and expense of several police officers, while comparable photographic surveillance would require a net of video cameras so dense and so widespread as to catch a person’s every movement, plus the manpower to piece the photographs together.” At the same time, however, the court recognized the disappearance of technological barriers to tracking, noting that “the marginal cost of an additional day — or week, or month — of GPS monitoring is effectively zero. Nor, apparently, is the fixed cost of installing a GPS device significant; the Los Angeles Police Department can now affix a GPS device to a passing car simply by launching a GPS-enabled dart.”
The opinions have all avoided the next question – whether similar tracking using satellites and public cameras to pervasively track a vehicle or a person in public constitutes a search.
In November, the oral arguments before the Supreme Court will provide an indication of the direction the Court is leaning. The Court did not grant certiorari for those cases upholding the searches as lawful, but that is not a particularly strong indicator. On the other hand, a decision that this particular technology requires a search warrant merely begs the question for RFID chip readers, tracking data in toll-paying devices, tracking data stored in cell phones, and tracing movement using facial recognition software on cameras installed in public places.
The ironic result of decisions invoking Katz is that the Court does not have the ability to learn what the public’s expectation of privacy is nearly as much as it has the power to inform the public what expectation of privacy it now should have.
Hopefully, the Court will move beyond the discussion of how the GPS device was attached to the car to focus on the question of pervasive tracking of citizens by the police. To analogize from the beeper in Knotts is unhelpful. Instead the Court should – and likely will – return to the first principles of Katz regarding the public’s reasonable expectation of privacy.