Jan. 23 (Bloomberg) -- The U.S. Supreme Court for the first time limited police power to track people using GPS devices, ruling in a case that will shape the privacy rights Americans should expect from a new generation of wireless electronics.
Today’s decision addresses the unprecedented power that technology is giving police to peer into Americans’ day-to-day activities. The ruling, which centered on a global-positioning system device officers attached to a drug suspect’s car, may also affect mobile phones and other technologies.
The decision means that police in many cases will need a warrant to track suspects using GPS, even as the court’s divided reasoning left the exact parameters of that constitutional requirement unclear. The justices unanimously overturned the conviction of Antoine Jones, who was found guilty of running a narcotics trafficking operation out of his nightclub in Washington. They splintered into three camps in their reasoning.
“Law enforcement is now on notice that almost any use of GPS electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance,” said Walter Dellinger, a Washington lawyer who represented Jones in the case.
Five justices faulted police for the act of attaching the GPS to Jones’ car. Writing for the group, Justice Antonin Scalia said officers, who lacked a valid warrant, “encroached on a protected area,” when they “physically occupied private property for the purpose of obtaining information.”
Other justices used more sweeping reasoning, saying police might violate the constitutional ban on unreasonable searches even when they obtain GPS signals without having to attach a device. Justice Sonia Sotomayor said that “with increasing regularity,” the government will be able to track suspects “by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones.”
“Awareness that the government may be watching chills associational and expressive freedoms,” Sotomayor wrote. “And the government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.”
In another concurring opinion, Justice Samuel Alito and three other justices said the pivotal question might be the length of time officers use GPS monitoring without a warrant. In the Jones case, officers used the device for four weeks.
“We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the four-week mark,” Alito wrote.
Together, the three opinions marked a rejection of the Obama administration’s bid for broad power to use GPS signals. The administration urged the high court not to require a warrant for GPS use, calling it a minimally intrusive step that yields important results in drug and terrorism cases.
The Justice Department didn’t have an immediate comment on ruling, said Tracy Schmaler, a department spokeswoman, in an e-mail.
To obtain a warrant, officers must show a judge that they have “probable cause” to believe the search will lead to evidence of a crime.
The case split the court along unusual lines. Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sotomayor signed Scalia’s majority opinion. Justices Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan joined Alito’s opinion.
Intrusion by Government
Both Scalia and Alito sounded cautionary notes, each saying he was limiting his opinion to particular issues and circumstances. The ruling left some privacy advocates saying they wished the court had done more.
“We are concerned it doesn’t go far enough and will not address newer, growing geo-location tracking via cell phones,” said Ed Black, president of the Computer & Communications Industry Association in Washington, which represents technology companies including Google Inc. and Facebook Inc.
Sotomayor was bolder, calling for a re-examination of previous rulings that say people shouldn’t expect privacy in information they voluntary disclose to third parties. She called those rulings “ill-suited to the digital age,” in which people create a record of the phone numbers they dial or text, the websites they visit and the items they buy online.
“I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every website they had visited in the last week, or month, or year,” Sotomayor wrote.
The divide between Scalia and Alito turned less on the outcome of the Jones case than the mode of analysis. Scalia said the Fourth Amendment was historically tied to the law of trespass and a physical intrusion by government agents.
Alito called that reasoning “highly artificial,” arguing the court decided decades ago that a physical intrusion wasn’t required for a Fourth Amendment violation. Alito pointed to more modern decisions that focus on a person’s “reasonable expectation of privacy.”
Alito also suggested that Congress and the states consider enacting statutes to regulate GPS use for law enforcement.
“In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative,” he wrote.
Senator Pat Leahy, the chairman of the Senate Judiciary Committee, is pressing a measure that would update federal privacy laws. The Vermont Democrat in a statement called the high court ruling “a victory for privacy rights and for civil liberties in the digital age.”
In the Jones case, the GPS device was placed in the car while it was in a Maryland parking lot. The device was one facet of an investigation by local and federal authorities that also included visual surveillance and a wiretap on Jones’s mobile phone.
Investigators eventually tied Jones, now 51, to a suspected drug stash house. Jones was arrested and convicted in federal court of conspiracy to distribute cocaine. He was serving a life sentence.
The Supreme Court in 1983 upheld the use of a beeper placed on a car to track a suspect during a single trip. The question in the latest case was whether the Constitution’s Fourth Amendment lets police use GPS devices continuously over longer periods without first going to a judge. Lower courts were divided on the issue.
The case is United States v. Jones, 10-1259.
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