WASHINGTON — As Antoine Jones drove his Jeep Grand Cherokee around the Washington area in the fall of 2005, he was simply going about his daily routine. But unfortunately for Jones, whose daily routine involved frequenting a drug stash house in Maryland filled with $850,000 and 97 kilograms of cocaine, the U.S. government was watching.
Thanks to a global positioning system covertly placed in the underbelly of Jones’ car, the government was able to track and record the Jeep’s every move. But Jones challenged the legality of evidence, saying the GPS had not been installed within the time frame or physical jurisdiction outlined by the court in issuing a search warrant. The government argued that the GPS placement didn’t actually constitute a search under the Fourth Amendment so the fact that police had not followed the warrant guidelines was irrelevant.
In what many viewed as a strong victory for privacy rights, the Supreme Court unanimously ruled that the attachment of the device was a search under the Fourth Amendment, thus requiring a warrant. But while the opinion authored by Justice Antonin Scalia answered the specific question in regards to a “physical search,” it was mum on the broader implications of the ruling.
“[The case] simply left for another day whether monitoring a device that had been preinstalled or otherwise gathering a large quantum of data on somebody would also raise a Fourth Amendment issue,” said David Gray, an associate law professor at the University of Maryland’s Carey School of Law. “That was the ground that the four-justice concurring opinion by Justice [Samuel] Alito was ready to reach, but the narrower ground identified by the Scalia majority didn’t need to get there, so it didn’t.”
This narrow ruling was not unusual, Gray explained. Courts usually try to “reach the narrowest grounds for a decision” and, because the court did not believe that the larger issue was adequately presented, Gray believes it would have been “irresponsible” to extend the decision more broadly.
A whole new level of technology
The Jones decision was built off of the Fourth Amendment, which protects “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures… [unless] upon probable cause, supported by oath or affirmation.” Over time, the amendment has been understood to assert the necessity of a search warrant before law enforcement can begin a search of people or property.
While the U.S. government did concede that officers had violated the terms of the warrant, the lawyers argued that GPS tracking did not require a warrant, citing previous cases that ruled placing a homing beacon on a car did not require a warrant. However, the defense asserted that GPS technology was exponentially more intrusive than the homing beacons, which essentially allowed police to track the beacon only when they were within its line of sight.
“This is an exceptional form of technology in terms of what resources have been available to law enforcement in the past,” said Kendall Burman, a senior national security fellow at the Center for Democracy and Technology. “They are able to track individuals and cars in this instant without the use of human beings.”
The third party doctrine
Because Scalia’s ruling stated that the “government physically occupied private property, questions continue to arise in regards to “nonintrusive” searches.
The Supreme Court’s third party doctrine outlined in United States v. Miller explains that citizens cannot expect privacy protection under the Fourth Amendment over information they disclose to a third party. When coupled with the growing amount of location information collected by private companies, this doctrine allows companies to use this information however they see fit.
Graphic by Ben Kamisar
John Villasenor, a senior fellow in the Center for Technology Innovation at the Brookings Institution, said that as private companies continue to amass mountains of information on the general public, location tracking without a “physical search” that would require a warrant under the U.S. v. Jones is already becoming less relevant
“Technology has changed so much that a lot of us have our locations tracked anyway without a warrant, so the issue of before-the-fact warrants will, in many cases, be less important than it was even when the events that led to Jones started,” he said. “…The location data to track you and me and almost everyone else is already stored somewhere. The question is, [who can] go and get it.”
As of March, a Pew Internet report found that 46 percent of American adults use a smart phone. These devices, which mostly run on operating systems created by Apple or Google, collect location data which is aggregated and stored by the company.
Justice Sonia Sotomayor addressed the issue of the third party doctrine in her concurrence, where she mentioned the possibility of reviewing the doctrine. Burman said that she was “heartened” to see Sotomayor question this doctrine and hopes that the court will address situations where people are not intending to lift the “veil of privacy” from their activities.
“I think the concurrence really draws that doctrine into question,” she said. “The strength of [Justice] Sotomayor’s concurrence along with [Justice] Alito’s suggests that there is a real opportunity to reevaluate what the third party doctrine means.”
But while Gray understands the need to re-evaluate the doctrine, he believes that the current doctrine “reflects a pre-existing assessment [of] the proper balancing of interests under the Fourth Amendment” between private rights and the ability of law enforcement to perform their duties. In his view, there are many legitimate circumstances in which law enforcement should be able to work with private companies. As a hypothetical example, he cited a social network company turning evidence of criminal activity to the police on its own accord.
“If you had a broad rule that any information that was detected and aggregated by a private company could not be shared with government without violating the Fourth Amendment, then you would essentially be building this artificial wall that would dramatically limit the ability for law enforcement to get involved in circumstances we would like them to get involved,” he said. “It’s going will be hard to make the case that building an artificial wall best serves the proper balance.”