GPS Tracking Without a Warrant

The Supreme Court heard arguments last week in U.S. v. Antoine Jones

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Hi, this is Steven Cherry for IEEE Spectrum’s “Techwise Conversations.” This is show number 80.

In 2005, the Washington, D.C. police suspected a nightclub owner, Antoine Jones, of being a drug dealer. They installed a fixed camera near his nightclub, they obtained phone records that showed the phone numbers of everyone he called on his cellphone, and they got a Title III wiretap for the cellphone conversations themselves. The police also got a warrant to attach a GPS device without Jones’s knowledge to his Jeep while it was parked in a public lot. Based in part on the GPS tracking, they found a drug stash house in Fort Washington, Md., and went on to convict Jones of conspiracy to distribute cocaine. The GPS tracking, in other words, was a success.

But in legal terms, they had botched the job—they attached it on the 11th day, when the warrant gave them 10 days, and they did it in the D.C. suburbs, when the warrant was limited to the District of Columbia. So, technically, the police had attached the device without a warrant. On that basis, Jones’s lawyers appealed his conviction. That left the government in the position of having to assert a right to track someone via GPS without a warrant. And the legality of that, unsurprisingly, is a question [PDF] only the Supreme Court can decide.

Devoted listeners to this show will recall that back in late September, Catherine Crump, a staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project briefed us on the case, and at the time we browbeat her into coming back after the oral arguments were made before the court. That happened last week, and true to her word, she’s with us today, again by phone from New York City. Catherine, welcome back to the podcast.

Catherine Crump: Thanks. Good to be here.

Steven Cherry: Tell us about the oral arguments. First, who did the arguing?

Catherine Crump: Well, the oral arguments were really interesting. The United States was represented by someone from the solicitor general’s office, and Mr. Jones was represented by Steve Leckar, who’s been his lawyer all along.

Steven Cherry: So had he argued before the court in the past?

Catherine Crump: No, this is his first argument before the Supreme Court. Quite a way to start out with one of the most important Fourth Amendment cases the court has heard in 10 years.

Steven Cherry: That sounds pretty dramatic. The government was represented by Deputy Solicitor General Michael Dreeben. So how did the arguments go?

Catherine Crump: The arguments were actually really fascinating. You know, many experienced court watchers said that this was an argument that was unique in some ways because a lot of the justices really seemed to be struggling with this issue. It wasn’t the type of case where people walked in and they had pretty much decided what they wanted to do with it. I think many members of the court across the ideological spectrum were genuinely concerned about the idea that the police could attach a GPS device to someone’s car and track it for as long as they wanted, for any reason whatsoever, with no court supervision whatsoever. And at the same time they were concerned about tying law enforcement’s hands too tightly. And so I think they were really grappling with what decision to reach here that balances civil liberties and privacy and law enforcement.

Steven Cherry: I guess it was pretty striking. Both the chief justice, John Roberts, and Justice Breyer—those two are about as far apart on this court as you can get—they both asked in effect the same question. Breyer said that if the government won, it would be able to monitor the movements of every citizen. And Roberts asked—this is a quote I saw in USA Today—he said, “You could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month, no problem under the Constitution?”

Catherine Crump: Yes, that’s right, and even an experienced advocate like Mr. Dreeben had to pause for a minute because the chief justice is asking whether it would be okay to monitor the justice’s cars with no court supervision at all. And yes, under the government’s arguments, that’s exactly what any police officer would be able to do. And I think that answer made the court uncomfortable, and they were really musing about what it means to live in a free society if it’s possible for everyone’s movements to be documented wherever they go. And you know, as we talked about last time, people’s movements can reveal a great deal about them, from where they go to the doctor’s office and the therapist to who all of their friends are. And the idea that law enforcement could get all of that information—I think people thought that was quite scary and threatening.

Steven Cherry: You know, you mentioned that the justices seemed to be struggling with either answer, yes or no. And so on the other hand, the government can track a person’s movements with, I don’t know, spy satellites and some other technologies. And Justice Sonia Sotomayor, who’s one of the more liberal voices on the court—she asked, in effect, what was the difference between one satellite and another.

Catherine Crump: Well, I think there’s a big difference, but I think that’s one of the questions that the court is really struggling with, right? It’s accepted that if the police think you’re engaged in wrongdoing, an officer can tail you and follow where you go, and so the question is, how is using GPS different? I think there’s good answers to that question. GPS is an extremely cheap technology; it requires very little effort for law enforcement to attach a GPS device to a person’s car, and then police officers can sit in the station and track where people go. And so there’s not the same resource barrier to using GPS that I think has always protected people’s privacy when the question was whether or not to assign an officer to tail them. And the question is whether that distinction makes a constitutional difference.

Steven Cherry: Catherine, the right to privacy is not exactly explicit in the U.S. Constitution in the way, I don’t know, freedom of religion or due process are. In this case, the Fourth Amendment protects us from unreasonable searches and seizures, but what makes one search reasonable and another unreasonable is what I guess is called the “expectation of privacy.” And Chief Justice Roberts reportedly even said, “I don’t know what society expects,” so he was looking for that expectation of privacy.

Catherine Crump: Yeah, you know, this is really the central conundrum. It used to be that the idea of “What is a search?” was tied to property notions. If government came into your house, they were conducting a search, because they had violated your property. And then in the 1960s, the court separated the notion of privacy from the notion of trespass. And that was important because it allowed the court for example to hold that if you’re talking on the telephone, even if the government doesn’t have to barge into your house to listen in on that conversation, it still violates your reasonable expectation of privacy and therefore your Fourth Amendment rights for the government to wiretap that conversation. At the same time it’s proved difficult for courts in general to determine when a privacy expectation is reasonable or not, and even the court itself seems to be struggling with how to give some sort of stable meaning to this concept. You know—and many aspiring law professors have written their tenure articles on how to come up with a unified theory of the Fourth Amendment on solving this problem, and it really is a very difficult one. And so the court may well take it case by case, as it does, and sort of adjust these narrow facts. And I think Americans don’t expect to be tracked everywhere they go using GPS technology.

Steven Cherry: And yet Americans are coming to be tracked more and more. Several justices brought up George Orwell’s 1984, but the last time you were here you pointed out the huge difference between a private entity like Facebook tracking us 24/7 and then the government doing it, which is what happens in 1984. But my question for you is: If the expectation of privacy changes, then so does our right to privacy. And couldn’t we lose a lot of our rights to privacy with respect to the government because people are voluntarily letting themselves be tracked through our credit card purchases, and automated toll collection devices, and cellphones, and Facebook?

Catherine Crump: You know, I guess that’s one way the court could potentially address this issue, but I don’t think that makes sense. I think there has to be some sort of normative evaluation of what is private, and I think the fact that—for instance, you use a cellphone, which keeps track of your movements—the fact that you take advantage of that modern-day convenience doesn’t mean that you actually want to government to be tracking you. And I think there has to be a way to draw a distinction between giving your location information to a private company and giving it to the government to use it in ways that you may not anticipate or like or even expect.

Steven Cherry: Fair enough. Sometimes the Supreme Court has a choice between a narrow ruling and a sweeping one. I’m wondering if that’s true in U.S. vs. Antoine Jones?

Catherine Crump: You know, it could be. The court actually is considering two separate questions. One is actually whether using the GPS device to track someone’s movements violates the Fourth Amendment. The other is a somewhat narrower question of whether or not the physical attachment of the GPS device to a car interferes with someone’s property interest in their car in a way that violated the Fourth Amendment, because the government was sort of effectively converting Mr. Jones’s car into a device that was tracking him for the government’s purposes. So it’s possible that the court could decide this case by addressing that property intrusion question rather than the broader tracking question, and if that’s the case then the court may create some clarity on the question of whether or not the government can attach GPS devices to someone’s car. But we’ll still be very much in the dark about whether or not the government can track us through our cellphones, and I think at the end of the day that’s the more significant question, because we all carry cellphones with us wherever we go, and they create these constant records of our movements.

Steven Cherry: All right. So the court first agreed to hear the case, then they’ve actually heard the oral arguments, then they deliberate for sometimes months. Do you have any idea when the court’s going to rule on this case?

Catherine Crump: We really don’t. In general, the court issues all of its decisions for the year by June, and so the decision could come anytime between now and June.

Steven Cherry: Very good. Well, we bludgeoned you last time—it was for three appearances—so I hope you’ll be back with us again whenever the court does hand down its ruling.

Catherine Crump: That sounds great. I’d love to.

Steven Cherry: We’ve been speaking with Catherine Crump, a staff attorney with the ACLU’s Speech, Privacy and Technology Project, about whether the police can continuously track you in your car without a warrant. For IEEE Spectrum’s “Techwise Conversations,” I’m Steven Cherry.

This interview was recorded 22 November 2011.
Audio engineer: Francesco Ferorelli
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