Nov. 8 (Bloomberg) -- U.S. Supreme Court justices raised the specter of George Orwell’s novel “1984” as they questioned whether police officers should have unbridled freedom to place GPS devices on cars to track criminal suspects.
Hearing arguments in Washington, the court today voiced concern that the pervasive government surveillance envisioned by Orwell might become reality, as the justices debated whether police need a warrant before using global-positioning system technology. The hour-long session produced no clear answer, other than a consensus that the decision could have far-reaching implications.
A ruling for the government might let police “monitor 24 hours a day the public movement of every citizen in the nation,” Justice Stephen Breyer said. Such a scenario “sounds like ‘1984,’” he added.
The high court case concerns Antoine Jones, whom police in Washington tracked for more than a month in 2005 using a GPS device secretly placed on his Jeep Grand Cherokee. Investigators in the nation’s capital tied him to a suspected drug stash house, and Jones was eventually arrested and convicted in federal court of conspiracy to distribute cocaine.
A federals appeals court overturned the conviction, saying the GPS tracking violated the constitutional prohibition on unreasonable searches and seizures. The Obama administration is seeking to reinstate the conviction, arguing that police should have broad power to use GPS devices without court permission.
Several justices said they were concerned that technology is giving police unprecedented power to peer into Americans’ day-to-day activities with cameras, computers and tracking devices.
Justice Sonia Sotomayor told Justice Department lawyer Michael Dreeben that, under the government’s theory, “you could monitor and track every person through their cell phone, because today the smartphones emit signals that police can pick up and use to follow someone anywhere they go.”
Her questioning drew resistance from Justice Antonin Scalia, who said lawmakers were better suited than judges to put limits on police. “Don’t we have any legislatures out there that could stop this stuff?” Scalia asked.
The Obama administration argues that GPS tracking provides no more information than what police, given enough resources, could obtain through visual surveillance.
“The fact that GPS makes it more efficient for the police to put a tail on somebody invades no additional expectation of privacy that they otherwise would have had,” Dreeben argued.
Justice Anthony Kennedy suggested support for that reasoning, telling Jones’s lawyer that “what you’re saying is that police have to use the most inefficient methods.”
Jones’s lawyer, Stephen Leckar, said that “the use of a GPS has grave potential, grave threats of abuse to privacy.”
The Supreme Court said in 1967 that the Constitution’s Fourth Amendment doesn’t shield information a person “knowingly exposes to the public.” Other high court cases have said the central question is whether a person has a “reasonable expectation of privacy” that was violated.
Chief Justice John Roberts and Justice Samuel Alito both questioned the usefulness of that test, saying technology is rapidly changing people’s expectations of privacy.
“Maybe 10 years from now 90 percent of the population will be using social networking sites, and they will have on average 500 friends and they will have allowed their friends to monitor their location 24 hours a day, 365 days a year, through the use of their cell phones,” Alito said. “What would the expectation of privacy be then?”
Roberts also questioned the relevance of a 1983 Supreme Court ruling that upheld the use of a beeper placed on a car to track a suspect during a single trip.
“The technology is very different and you get a lot more information from the GPS surveillance than you do from following a beeper,” the chief justice said.
Roberts at another point cast the issue in personal terms - - and drew laughter from the packed courtroom -- when he asked Dreeben whether authorities could place a GPS device on the cars of each of the nine justices. Dreeben said authorities could take that step -- just as they can constitutionally follow a justice or any other person when in public.
Jones, now 51, was a Maryland resident who owned a nightclub in Washington where prosecutors say he ran a narcotics trafficking organization. The GPS device, placed in the car while it was in a Maryland parking lot, was one facet of an investigation by local and federal authorities that also included visual surveillance and a wiretap on Jones’s mobile phone. Jones is serving a life sentence.
The case is United States v. Jones, 10-1259.
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