High court tangles with Orwellian GPS fears v. past ruling

While troubled by the growing invasiveness of mobile technology, the U.S. Supreme Court could rule the government's use of warrantless Global Positioning System tracking does not violate a person's constitutional right to privacy because a previous verdict sanctioned beeper tracking, some legal experts say.

On Tuesday, the high court heard oral arguments in a case in which federal officials argued that it is permissible under the Fourth Amendment for authorities to use locational data to monitor a suspect's movements on public streets. United States v. Jones involves a 2005 incident in which police slipped a GPS device onto a vehicle driven by alleged drug dealer Antoine Jones. A lower court overturned Jones' conviction after deciding his sentencing was based on evidence obtained illegally through an "unreasonable search," consisting of monthlong, 24-hour surveillance of location data. The federal government appealed that decision to the Supreme Court, inviting justices to weigh the constitutionality of unlimited GPS tracking.

"I think the most likely result is they acquiesce and allow the government to do it" without a warrant, said David Abrams, a fellow at Harvard University's Berkman Center for Internet and Society. "The court is really sort of disturbed by it . . . On the other hand, they're having a hard time of finding a way of setting limits." The 1983 Knotts v. United States case determined that beeper surveillance of a vehicle traveling on public roadways does not undermine the Fourth Amendment expectation of privacy.

"The justices are very concerned, but there isn't much they can grasp to come up with a principled rule," Abrams said.

Justice Ruth Bader Ginsburg warned that an accumulation of GPS data could provide police with an easy way to pick up anyone for speeding simply because they believe more nefarious activity is under way. "It's all in the computer. The police can say, we want to find out more about X, so consult the database, see if there is an indication that he was ever speeding in the last 28 days," she said Tuesday during oral arguments.

Justice Stephen Breyer noted a fallback option proposed by the government -- the reasonable suspicion standard. That principle would let police trace movements of individuals on roadways when authorities do not have probable cause for a warrant.

Referring to the U.S. government's stance, Breyer said, "And they say, at least with that you will avoid the 1984 scenario and you will in fact allow the police to do their work with doing no more than subjecting the person to really good knowledge of where he is going on the open highway. They probably put it better than I did."

Under the standard, authorities would have to supply reasons for suspecting a person of an offense -- perhaps tips from a trusted informant about possession of narcotics -- that would hold up later in court. The upshot would be the federal government could not create a massive database of people's travel trajectories, Abrams said. Still, officers could abuse the authority, he added.

Deputy Solicitor General Michael Dreeben, who argued on behalf of the U.S. government, said the number of GPS devices that federal authorities use is "in the low thousands annually," adding, "it's not a massive universal use of an investigative technique."

But Jones' attorney, Stephen Leckar, maintained: "Reasonable suspicion is something that the court has adopted for limited intrusions . . . Every 10 seconds of the day for 28 days is by no person's [standards] a limited intrusion."

Abrams said the reasonable suspicion rule probably would avoid the Big Brother problem by prohibiting the government from sticking GPS devices on every car in the county, but it would not protect criminals very much. "If that was the standard, it wouldn't do Jones any good. It would be one of those pyrrhic victories," he said.

Other pundits, however, note that Chief Justice John Roberts broke ranks and suggested that the Knotts beeper decision is an outdated precedent in the era of omniscient technology.

"That was 30 years ago," Roberts said. "The technology is very different and you get a lot more information from GPS surveillance than you do from following the beeper."

SCOTUSblog commentator Lyle Denniston wrote, "As the justices allowed their imaginations to run over ever-changing technology that may allow the police to dig deeper and deeper into Americans' private lives, a way to get around the Knotts statement appeared to be the one real challenge the court would face as it moved toward a final ruling. And that is the challenge that the chief justice seemed to have addressed in suggesting that the fact that movements are in public may not necessarily make them fair game to intrusive monitoring by the police."

The chief justice compelled Dreeben to concede that if GPS tracking does not constitute a "search" under the Fourth amendment, then the government on a whim could electronically trail every justice on the bench:

"You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? You think you're entitled to do that under your theory?" Roberts asked Dreeben.

Dreeben replied, "Under our theory and under this court's cases, the justices of this court when driving on public roadways have no greater expectation."

His suspicions confirmed, Roberts said, "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."

Congress or state legislatures could be the ultimate arbiters because lawmakers have the ability to set more specific restrictions, such as limits on the duration of tracking and the types of surveillance technologies allowed. Several U.S. House and Senate members already have introduced bills barring authorities from tracking the location of people's mobile devices without a warrant.

The Supreme Court is expected to decide the Jones case later next year.