GPS Tracking: An Invasion of Privacy?

A Look at the Supreme Court's Decision in United States v. Jones

The Supreme Court's unanimous decision in the United States v. Jones GPS tracking case has been hailed as a victory by privacy rights advocates. Indeed, the fact that both sides of the ideological bench could mount a united defense of the Fourth Amendment makes a powerful statement. But many difficult questions remain unanswered.
Background
Before analyzing the court's decision, let's review the basic story line:
Antoine Jones owned a Washington DC night club. The FBI, as well as the Metropolitan Police Department, suspected Jones of dealing drugs and enlisted a plethora of surveillance techniques to make their case. These techniques included a camera trained on the front door of his night club, visual surveillance, and a wire tap of his cell phone. Beyond that, the authorities obtained a search warrant to attach a GPS device to a Jeep registered to Jones's wife.
The warrant for the GPS specified that the device had to be installed within 10 days in the District of Columbia. Authorities attached the device on the 11th day in Maryland. Ergo, they conducted a warrantless search.
Jones was convicted of possession of cocaine with an intent to distribute the same and sentenced to life in prison. The conviction was later reversed because of the warrantless use of GPS data.
The authorities contended that the GPS tracking did not constitute a search as defined by the Fourth Amendment. The evidence, therefore, should be admitted.
The Decision
The case of United States v. Jones eventually came before the Supreme Court and was decided on January 23, 2012. The Court's task was to determine whether attaching a GPS tracking device to a vehicle constituted a search under the Fourth Amendment.
Justice Antonin Scalia's Opinion opens with these words:

We decide whether the attachment of a GlobalPositioning-System (GPS) tracking device to an individual's vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

By attaching a GPS tracking device, Scalia argued,

The government physically occupied private property for the purpose of obtaining information.

The Supreme Court unanimously decided that the FBI and the Metropolitan Police Department violated Mr. Jones's rights as defined by the Fourth Amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Supreme Court's decision, while hailed as a signal victory by privacy rights advocates, deals exclusively with physically attaching a GPS device to private property, and the Court has not outlawed this practice. Indeed, GPS tracking remains a common tactic in terrorism and narcotics investigations. But after this decision, it will be legally problematic to use these devices without first obtaining a Search Warrant.
What This Decision Does Not Mean
In a concurring Opinion, Justice Samuel Alito questioned the premise of the Decision, based as it is on physical property. In the digital age, he noted, physical trespass is not required for close tracking. And, he argued, accessing such tracking data may violate a citizen's reasonable expectation of privacy.

In some locales closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car's location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.

Scalia did not dismiss Alito's viewpoint, noting

It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.

Looking at the decision from an entirely different angle, Justice Sotomayor questioned the traditional legal reliance on a "reasonable expectation of privacy" in the digital age.

People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries and medications they purchase to online retailers. I, for one, doubt that people would accept without complaint the warrantless disclosure to the government of a list of every Web site they had visited in the last week, or month, or year.

Sotomayor, alone, attempted to detach the question of privacy from technology. She maintained that individual privacy rights should not change as technology continues to develop.
Conclusion
While the Jones Decision set an important limitation on surveillance in the digital age, it leaves other important issues undecided. Among these are:

• How extensively can an individual be tracked, if that tracking does not require physical trespass? Tracking via cell phone data, toll booth records and vehicle guidance systems is not directly addressed in this decision.
• What expectation of privacy does an individual have when sharing or releasing information via search engines, email programs, and online purchases?

As new technology continues to make extensive data mining easier and more attractive to law enforcement, such questions will no doubt reach the Supreme Court. A Court which, at least for now, is united in its understanding of the Fourth Amendment.