(Mike Renlund/Flickr)

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.”

Most often, the pundits discuss a nominee’s gender, upbringing, legal background, political alignment and previous cases.  One’s stance on national security issues doesn’t always get a lot of attention.  But now that the United States  is engaged in two wars, it is incredibly important, argues UC-Berkeley law professor John Yoo, to consider a nominee’s stance on national security.  In a recent op-ed in the Wall Street Journal, Yoo—a controversial former Justice Department official—wrote that Justice Stevens had a tendency to undermine military authority in wartime, and was on a “crusade to overturn the executive branch’s terrorism policies.”  Yoo said that in 1943, Stevens (then a Navy intelligence officer) raised “humanitarian concerns” when FDR commanded the Navy to shoot down a plane carrying Admiral Isoroku Yamamoto, the planner of the attack in Pearl Harbor.  What then, Yoo asked, does Stevens think of the U.S. “raining missiles down” on Afghanistan, Pakistan and Yemen?

After 9/11, the Bush administration expanded presidential powers to reach into matters of national security.  Critics of this expansion of power, ranging from academics to Supreme Court justices, thought Bush’s actions were unconstitutional and even illegal.  Through an executive order, the Bush administration approved a “terrorist surveillance program,” which authorized the National Security Agency to monitor communication (phone calls, e-mails, Web browsing, text messaging) between parties believed to be beyond U.S. borders, without a warrants, as part of foreign intelligence collection.  The issue of “indefinite detention” has been controversial, and some groups, like the American Civil Liberties Union, believe the Patriot Act allows for such detention, which has been utilized in the military detention facility at Guantanamo Bay, Cuba.

Yoo wrote that President Barack Obama “cannot keep his promise to the American people to fight al Qaeda with all of the tools at the presidency’s disposal if he appoints a justice who will continue to obstruct and second-guess the decisions of our military and intelligence officials.”

A National Public Radio piece broadcast right after Stevens’ retirement announcement said “the decisions Stevens is likely to be remembered for most are those he authored on national security and presidential power.”  Two notable cases are the Hamdan 5-3 decision in 2006, which challenged Bush’s plan for military tribunals at Guantanamo, since they would break the Geneva Conventions, and the 2004 Rasul decision, which allowed detainees at Guantanamo to challenge their detainment in federal court.  (Legal analyst Jeffrey Toobin said Rasul was the first time a president lost a major civil-liberties case in the Supreme Court during wartime.)  These two Supreme Court decisions forced a redefinition of the Bush administration’s Guantanamo policy.

And both of these decisions also had “profound implications for the limits of presidential power,” according to NPR.  Stephen Vladeck, a law professor at American University who served on the legal team that successfully challenged Bush’s policies in Hamdan, agreed.  He said history will look back at these verdicts as some of Justice Stevens’ most important contributions to American law, in part because since he “reaffirm[ed] the role of the courts during crisis times” and directly impacted operations at Guantanamo and in the Bush administration’s war on terror.

Robert F. Turner, co-founder of the University of Virginia’s Center for National Security Law and a former chair of the American Bar Association’s Standing Committee on Law and National Security, acknowledged that Yoo “gets criticism from a lot of people about his views of presidential power,’’ including opinions he rendered while a policy lawyer in the administration of President George W. Bush that gave virtually unlimited authority to the president as commander in chief.

But he criticized Yoo as being “irresponsible,” for suggesting that judges are obstacles to our military operations.  If anything, Vladeck said, the judges are mandated by the Constitution to serve as checks on the administrative and legislative branches of government.

“What John Yoo calls an obstacle, I call a separation of powers,” Vladeck said, describing the High Court’s checks on executive power as an “inescapable reality of our judicial system.”

It’s especially important for the justices to assert their opinions “on issues where public sentiment is against them,” said Vladeck, adding that national security may be one such issue, but it’s not a reason to cherry-pick a justice who will be friendly and “unobstructive” to Obama’s national security agenda.

As for whether one’s national security stance will—or even should—play an role in Obama’s nomination process, Vladeck said that it’s fair to question any judicial nominee (at any level) about his view of “the separation of powers in any case, including ones that implicate national security.”  But, he said he would draw a clear distinction between that and asking what the nominee thinks America’s stance on national security should be.

Turner, however, said certain powers given to the president, specifically regarding foreign affairs “are to be unchecked” and, as Chief Justice John Marshall said, that the courts have no right to second-guess these decisions.  He added that, though the Supreme Court likely would not approve of Yoo’s opinion, it is “a reasonable view” with a “strong case in both practice and in text.”  Turner referred to the 1944 case in which the Court upheld Japanese detention camps, even though thousands of Japanese—many of whom were American citizens—were interned simply for being Japanese and for spreading fear and vulnerability among a paranoid American populace.

Vladeck said that Yoo’s “kind of sentiment is deeply troubling,” and that a Supreme Court justice ought to possess independent thought regarding myriad political issues—which is why they are appointed for life terms to dictate the law of the land.

Turner admits that if it were his call, “I would not appoint a justice who I thought would be soft on national security…and on the other hand, I wouldn’t want someone who thinks civil liberties don’t count.”  He said that beyond a justice’s background, religion and gender, you want people who are “relatively moderate, intelligent, honorable, whom you can rely on to do the right thing.”  He said that of the names that have been tossed around as potential nominees, “most of these names strike me as being in that category.”  And that’s regardless of their opinions on national security.