Supreme Court to consider government's warrantless GPS tracking

Current surveillance laws do not regulate law enforcement's access to geolocational information.

The U.S. Supreme Court has agreed to hear a major mobile-tracking case filed by the Obama administration that will weigh whether it is unconstitutional for the government to access GPS-location data continuously over a prolonged period without a warrant.

Earlier this month, a bipartisan group of House and Senate lawmakers introduced legislation that would bar authorities from tracking the location of people's mobile devices without a warrant. Current surveillance laws do not regulate law enforcement's access to so-called geolocational information.

In United States v. Jones, the court will explore whether authorities violated the Fourth Amendment rights of suspected drug dealer Antoine Jones by sneaking a GPS device onto his Jeep to follow him without a warrant, the court announced on Monday. Last summer, the District of Columbia Court of Appeals discarded a conviction of Jones because it was based on evidence derived from what the court called an "unreasonable search" -- consisting of 24-hour surveillance of location data over a month.

Justice Department officials have argued that monitoring the progress of a car on a public street does not constitute an infringement on privacy. Officials on Tuesday had no comment on the Supreme Court's move to review its case.

The court will not take up the case until its next term, which starts in October. Other lower courts have ruled that it is legal for authorities to use a GPS device in this way without a warrant.

Mobile-tracking technology has become a sticky issue for Obama administration officials, who are facing pressure to better protect smartphone users' personal data --but at the same time ensure authorities have the personal information they need to protect citizens' safety.

Some law enforcement experts say a Supreme Court ruling that deems warrantless GPS tracking illegal could foil FBI operations that depend on fast action. For example, when authorities see a suspected human trafficker driving a car, they must either tag the vehicle immediately or risk losing the alleged criminal's trail forever, said Paul Wormeli, executive director emeritus at the Integrated Justice Information Systems Institute.

"If you see a crime in progress, you act on it," he said. "The person may disappear into the night and you'll never a get another chance."

Wormeli is pushing for the courts --and Congress --to let officers employ GPS tracking if they determine probable cause.

"Based on their training, based on the fact they've gone through a reasoned process, they should be allowed to go ahead and use it instead of having to go and track down a judge at 2 o'clock in the morning," he said.

Regardless of the Supreme Court's actions, Wormeli said lawmakers should pursue new legislation to clarify when it is and is not appropriate to monitor suspects with mobile devices. "There is no modern way to take into account the kind of technology that is available today, including video surveillance," he said.

Sen. Ron Wyden, D-Ore., introduced the proposal to ban warrantless GPS tracking for this very reason.

"Law enforcement agencies and private companies are essentially trying to run a technological Indy 500 with rules designed for the horse and buggy era," he said. "Questions like the one now being examined by the Supreme Court are going to keep tangling up law enforcement and the private sector until Congress updates the law and provides clear, strong rules for everyone to follow."

John Wesley Hall, former president of the National Association of Criminal Defense Lawyers, said the government's line of reason, taken to its logical conclusion, amounts to wiretapping vehicles.

"Couldn't they just require that GPS devices be put in all cars and all cars be required to communicate with the government?" he questioned. "What is to stop them from saying all cars sold in the United States have to be installed with GPS?"

The association plans to file friend of the court brief supporting Jones.

Last summer, the appellate court decided that "the whole of a person's movements over the course of a month" is not publicly available information because "the likelihood a stranger would observe all those movements is not just remote, it is essentially nil," adding, "like a rap sheet, that whole reveals far more than the individual movements it comprises."

Civil liberties groups Electronic Frontier Foundation and American Civil Liberties Union filed friend of the court briefs at that time.

"The [Supreme] court has the opportunity in this case to safeguard Fourth Amendment privacy protections in the face of technological advances," ACLU staff attorney Catherine Crump wrote on the organization's blog. "The court's decision in Jones could have a significant impact on everyone's privacy because most of us are carrying a tracking device everyday: our cellphone."