Do not expect the U.S. Supreme Court to split along partisan lines when it grapples with an upcoming Obama administration case to decide whether amassing location data from a GPS device on a suspect's vehicle is constitutional, said former Bush administration officials who have argued before the court during both presidencies.
In United States v. Jones, justices will examine the current administration's contention that installing a mobile-tracking device onto a suspect's personal vehicle without a warrant is legal and not an unreasonable search, counter to an appellate court's decision that 24-hour surveillance of location data over a month violates Fourth Amendment privacy rights.
Even the administration is conflicted over the proper use of location-based data. Federal agencies are working with Congress to set clear privacy standards that protect consumers from unreasonable searches of their whereabouts by smartphone companies and advertisers, without stifling innovation and productivity.
"There are some technologies that allow private individuals, but also the government, to essentially aggregate public events that raise distinct privacy issues, and I think it's something the court will have to wrestle with," said Paul D. Clement, U.S. solicitor general between June 2005 and June 2008. "Don't be surprised if that doesn't divide along the obvious divisions of the court."
The administration's position is that the government's use of GPS technology to follow suspected drug dealer Antoine Jones was not a search because authorities were tracking public movements of a car.
Clement, now a partner at Bancroft PLLC, said, "In the government's defense, there's something to this." He added, however, the argument raises the question: While people have no expectation of privacy in a parking lot, should they expect their Web-based movements to be private? Clement spoke Wednesday at an event hosted by the conservative Heritage Foundation previewing the Supreme Court session that starts in October.
Kannon K. Shanmugam, assistant to the solicitor general during the Bush administration, said the Jones case also brings up the issue of whether the initial insertion of a GPS device alone constitutes an unreasonable search.
Legal experts are debating whether the attachment and continuous, analytical tracking crosses the line, regardless of whether an individual has an expectation of privacy, said Shanmugam, who joined Williams & Connolly LLP after leaving Justice in 2008.
In the summer of 2010, the District of Columbia Court of Appeals threw out a conviction of Jones on the grounds that the evidence against him was obtained through an unreasonable search. The court's opinion stated 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."
Law enforcement specialists have said a high court ruling that outlaws warrantless GPS tracking could compromise federal investigations in which suspects are a flight risk. Law enforcement's stance is, if a criminal ringleader drives by, then authorities must either mark the car with electronics immediately or chance losing him, perhaps, across international boundaries.