(This post is cross-posted with COMAR LAW)
The United States Supreme Court has unanimously held that police officers need a warrant before they can monitor an individual with a GPS tracking device. United States v. Jones, No. 10-1259, 565 U. S. ____ (2012).
The decision provides cautious optimism of renewed concern by the Supreme Court for 4th Amendment protections in the digital age.
In Jones, federal agents placed a GPS tracker under the Jeep of a DC nightclub operator who had suspected involvement in narcotics trafficking. The agents tracked the jeep for 28 days and generated over 2,000 pages of geo-location data.
Eventually the federal government indicted Jones. He moved to throw out the GPS data as the fruit of an unconstitutional search.
All nine justices agreed the use of a GPS tracker without a warrant was unconstitutional, but they disagreed why it was unconstitutional.
Writing for five of his colleagues, Justice Scalia argued the search was unconstitutional because “the Government physically occupied private property for the purpose of obtaining information.” Such a “trespass” on property, combined with the search for information, would have been a search at the time the Fourth Amendment was adopted in the 18th century. Accordingly, the placing of a GPS tracker under a private vehicle for the purposes of gathering investigative data similarly required a warrant.
Justice Scalia acknowledged that his “property-based” analysis was an older approach to the Fourth Amendment, predating the modern test formulated in the 1967 case United States v. Katz.
Under Katz, a court ignores issues of property rights and instead examines an individual’s “reasonable expectations of privacy” in determining the appropriateness of Fourth Amendment guarantees. Justice Scalia argued that Katz augmented, but did not fully replace, the older property-rights based approach.
Four other justices agreed that the GPS tracking at issue was unconstitutional but disagreed with Justice Scalia’s reliance on a property-based approach to 4th Amendment protection. Writing for the concurrence, Justice Alito wrote that the Katz test remained the exclusive method of determining 4th Amendment protection.
Under Katz, Justice Alito concluded that “society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.” The 4 weeks of monitoring was long enough to require a warrant.
In a third concurrence, Justice Sotomayor wondered out loud whether current Fourth Amendment jurisprudence can make sense of future technological developments.
This is an excellent question.
Neither test employed by the Court is well prepared for intricate technological fact patterns that are sure to emerge in the coming years.
In an age when people will be able to integrate communications technologies seamlessly into their lives — or even into their bodies — it is clear that modern societies may rest on fundamentally different assumptions than those that existed in 1789.
At some point, law will need to change to reflect this new reality. The real issues will be: (1) who will make those changes — nine justices? Congress? the states? — and (2) whether privacy is buttressed or sacrificed as a result.