The Supreme Court Is Unanimously Confused About GPS Tracking

The court’s 9–0 opinion hides two profoundly different views on the right to privacy

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Steven Cherry: Hi, this is Steven Cherry for IEEE Spectrum’s “Techwise Conversations.”

In a surprising nine-to-nothing decision, the U.S. Supreme Court ruled this week that the police need a full search warrant when they want to track a suspect by attaching a GPS device to his or her car.

The decision [PDF] wasn’t obvious in advance. Several courts, both federal and state, have ruled the other way. After all, the police don’t need a warrant to track you if they do it the old-fashioned way—with shoe leather and tire tread.

The occasion for the ruling was the case of U.S. v. Antoine Jones. If that name sounds familiar, it’s because we’ve covered this terrain with our own shoe leather—twice in fact—once to lay out the issues in September, and a second time when the court heard oral arguments in November.

But how could we not return yet again? Cutting-edge technologies and our right to privacy collide here like two trucks on a highway, and the course the court sets us onto will determine the balance between our civil liberties and the needs of law enforcement for years to come.

On top of all that, the ruling itself is catnip for court watchers. If you peer inside, you’ll see the nine-to-nothing score hides court allegiances shuffled like a deck of cards, with strange-bedfellow linkages of liberals and conservatives on both sides of a bifurcated decision. A five-justice majority focused on one of our civil liberties, and a four-justice minority was deeply troubled by that very focus.

With me today is Catherine Crump, the American Civil Liberties Union’s staff attorney for its Speech, Privacy, and Technology Project, whose sure and steady voice has guided us through our two prior podcasts. As before, she joins us by phone from New York City. Catherine, welcome back to the podcast.

Catherine Crump: Thanks, it’s great to be here.

Steven Cherry: Catherine, I just want to remind our listeners of a few facts of the case first. Antoine Jones was arrested for dealing drugs, and some of the evidence was obtained when he was tracked by police. They did the tracking by attaching a GPS device to his car, and although the police had in fact gotten a search warrant, both the timing and the manner in which they attached the device violated its conditions. So technically this was a warrantless search, and that’s what the court had to decide—if the government can do GPS tracking like this, without a warrant. Five of the justices really focused on the fact that police physically attached the device to the car, right?

Catherine Crump: Right. Five of the justices, led by Justice Scalia, applied what many have referred to, including the other justices, as almost an 18th-century view of the Fourth Amendment. They asked whether or not there was a common-law trespass here. And because what the officers did involved specifically attaching a GPS device to the undercarriage of Mr. Jones’ property, his car, they found that there was a trespass and that the Fourth Amendment was therefore implicated.

Steven Cherry: Now, just setting aside the— this five was really a mixed bag here, right?

Catherine Crump: Yeah, it was a mixed bag. It included Justice Sotomayor, for example, President Obama’s appointee, in addition to Justice Scalia, who’s been regarded as one of the conservative leaders of the court.

Steven Cherry: And Roberts and Thomas were on that side too.

Catherine Crump: And Roberts and Thomas were on that side too. And on the other side, the other four included Justice Alito. And it always, this, I think, surprises people, when there’s a break between the two Bush appointees, with Justice Roberts on the one hand and Justice Alito on the other.

Steven Cherry: And likewise, actually, Kagan and Sotomayor have been voting together quite a bit. And Ginsburg too.

Catherine Crump: Yeah, that’s right. So it was a shuffle of alliances, but it was really heartening from a privacy perspective, that all of the justices, all nine of them, were concerned about the privacy implications of at least prolonged GPS tracking. All of them saw a problem with that, even if they viewed it in different ways. And I think that’s heartening, because it suggests that the, you know, the court is actually watching quite closely the way in which tech—new technologies—are implicated, impacting our privacy. And I think they have some concerns.

Steven Cherry: Yeah, and I want to come back to that. But let’s talk about the Alito opinion for a minute. I mean, Alito, in this opinion, really expressed some concern about relying on the physical trespass argument.

Catherine Crump: He did. He was the one, I think, who said, the court was asking, as though we were still in the 18th century, and that the technical trespass is really beside the point. And that what really is important from a privacy perspective is the fact that the government was learning everywhere a person went, 24 hours a day, seven days a week, for, in this case, 28 days, and that was the real privacy invasion, because of the detailed nature of the type of information that can be learned.

There was a little bit of a wrinkle in that opinion, though, which is that he was really focused on prolonged surveillance. And it’s not at all clear, and in fact you would think for Justice Alito, that lesser surveillance, lesser lengths of time, wouldn’t necessarily seem to be a Fourth Amendment problem.

Steven Cherry: Yeah, Alito was pretty strong in his language. Let me just quote one thing he said: “This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment. It has little if any support in Fourth Amendment case law. It is highly artificial.”

Catherine Crump: Yeah, well, I was a little surprised by the ruling too, because it used to be, up until maybe about the first half of the 20th century, that the court used the property-based analysis of the Fourth Amendment. If there was a trespass, there was a Fourth Amendment violation, potentially, and otherwise there wasn’t. And it seemed like that whole line of doctrine had been jettisoned in the ’60s, when the court decided a case called Cass v. United States, in which it said, we’re going to leave these property notions behind, and instead we’re going to recognize that the Fourth Amendment protects people, not places, and we’re going to ask whether or not an individual has a reasonable expectation of privacy that has been violated. And that’s going to be the benchmark for when there’s a Fourth Amendment violation, not any notion of property. And so actually, I think one of the ways in which yesterday’s decision is a really big deal is that we now have these two radically different theories of the Fourth Amendment, both of which seem to be viable. The “reasonable expectation of privacy” test on the one hand, and this property notion that Justice Scalia is working to revive on the other.

Steven Cherry: Yeah, you know, I think to a lot of our listeners, the Alito “expectation of privacy” argument is going to make more sense, but there are some pitfalls along the lines there, and Scalia actually pointed some of them out, right? He wrote that the “expectation of privacy” argument rests on the assumption that a hypothetical reasonable person has a well-developed and a stable set of privacy expectations, but technology can change those expectations.

Catherine Crump: That’s true, and I think there’s something to Justice Scalia’s concern. If you look back at some of the early privacy cases that people were concerned about, into the late 1890s, it was really the first time that still photography was common in the United States. And people were actually really offended by the idea that someone would simply take their photograph on the street without asking permission. Today, in the era of Facebook, that concern seems quaint, and we’ve all sort of gotten used to the idea that our friends, or even strangers, will not only take photographs of us but put them on the Internet for others to see. So it’s true that privacy expectations do change from time to time. That said, I think there’s something potentially more protective about framing the Fourth Amendment privacy interest in terms of reasonable expectations and tying it only to property interests, for reasons I think Justice Alito also pointed out.

Steven Cherry: You know, one thing I was struck by in this opinion is the pretty sophisticated level of understanding of the latest technologies: GPS, smartphones, you name it, that this displayed. I mean, both parts of the opinion, both concurrences. And the court has been criticized in the past for really not understanding technologies. What’s changed here?

Catherine Crump: You know, I mean, I think the court to some extent is a new generation, but I also think—you know, I’ve been wondering about that too. And I sort of wonder whether, you know, the legal profession has also changed. Every attorney has a smartphone now and knows how to use it. And I just wonder whether those changes have really pulled the court along too. Plus, these technologies are so ubiquitous in many people’s lives, it’s hard to see most of the justices doing without them. But you’re right.

You know, Justice Alito has a very sophisticated understanding of a variety of technologies, including cellphones. He understood the various ways in which cellphones could be tracked, and Justice Sotomayor, in an extremely heartening part of her opinion, pointed out all of the ways that modern technologies require us to share information with other people, from visiting websites to using GPS tracking devices. And I think, you know, I think the court is very attuned to these issues, and it makes me hopeful, frankly, that as they continue to grapple with these new technologies used, they’ll be well positioned to do so and will be very sensitive to the privacy issues that using these technologies are inevitably going to raise.

Steven Cherry: You know, I don’t read an awful lot of court opinions, and so maybe this isn’t as unusual as it seemed to me, but I was really struck by something else about the decision. It was really kind of wild how the two sides, this, you know, five-person group led by Scalia, and the four-person group led by Alito, they were really engaged in this kind of complete dialogue. I mean, the Alito group had their separate concurrences. Scalia actually references their arguments and responds, sometimes even in a footnote, and Alito actually responds in one place to the footnote response.

Catherine Crump: Yes, yes. This is the conversation about the large carriage or the tiny constable, right?

Steven Cherry: Yeah.

Catherine Crump: I thought it was very funny. Alito was struggling for some sort of 18th-century analogy to attaching a GPS device to someone’s car, and he was talking about, the only way to do that would have been if there was a constable hiding in a carriage in order to track someone’s movements, or, you know, and Scalia said in response, “Hey, that’s a fantastic example.” And then Alito in a footnote said, “Don’t be ridiculous. That would require a truly enormous carriage or a very tiny constable.” This is what passes for humor among lawyer sets, that we take it where we can get it.

Steven Cherry: I actually thought it was hilarious. But, I mean, do opinions normally do this? Do they have this kind of conversation?

Catherine Crump: You know, I think there was a little more exchange in this than there often is. I mean, the other thing that struck me about the opinion is how readable it was. I mean, I don’t think you need to be a lawyer or, you know, someone who spends a lot of time following legal issues in order to understand the various arguments here. And I actually think that’s a big credit to the court, because a law should be understandable by, you know, a typical person who’s interested in reading it. And I think you can get a real sense of the dynamic of what’s going on in the court and what the issues are at stake just by picking up the opinion.

Steven Cherry: Stepping back from all of the details, you know, I had the sense that both of these groups felt very strongly that Antoine Jones’s privacy rights, and by extension our privacy rights, were violated in this case. And their disagreement had a lot to do with what constitutional arguments will better protect our privacy rights in the future as engineers and inventors come up with, you know, better and better technical means for us to spy on one another.

Catherine Crump: I think that’s right. One of the criticisms you might levy at the Justice Alito opinion, hinging, you know, which focused on prolonged surveillance via GPS, is it doesn’t address short-term surveillance, right? It’s unclear under Justice Alito’s view of the world, whether if the government only attached a GPS device to your car for a few days, or perhaps only for a few weeks, whether you would be protected under the Fourth Amendment for that type of surveillance.

On the other hand, I think that some of the concurrent justices pointed out correctly that the Justice Scalia property-based view of the Fourth Amendment means this opinion may quickly become irrelevant, because it’s actually increasingly easy these days to engage in surveillance without attaching a GPS device or anything else to someone’s car, right? If someone has an OnStar system, you can simply track them by going to the company and ordering the company to cooperate with you—serving them with a court order, that is. And the same is true for cellphone tracking. You don’t need to physically attach something to somebody’s phone; you just go to the cellphone company.

Steven Cherry: You know, I had the feeling that in a couple of places, Scalia didn’t want to close the door to the Alito view, the “expectation of privacy” argument, you know, being compelling enough to decide a court case in the future. Am I misreading that?

Catherine Crump: No, I think that’s absolutely right. He, you know, he said in his opinion, you know, to be sure, the way we’ve decided this case, the property-based view, doesn’t address the question of whether or not it would violate the Fourth Amendment if there was some electronic means of tracking a car, but we don’t need to address that question today. We can instead decide this case on narrower grounds. And so I think it’s very much open what the justices who joined Justice Scalia would do in the future. But, you know, there were five justices, actually, who endorsed, at least to some extent, the Alito view, adopting the “reasonable expectation of privacy” test, because there were the four justices, including Justice Alito, who signed on to that opinion, plus Justice Sotomayor, who wrote her separate concurrence. You know, she did join the majority opinion, but then she also said there was much to recommend Justice Alito’s approach.

Steven Cherry: So I guess it’s fair to say that this was a very heartening decision in terms of the overall direction of the court, but it’ll take some future cases to really hammer out the law here.

Catherine Crump: I think that’s exactly right. Technology keeps changing, as we all know, and it’ll be really interesting to see this issue come back to the court. This may be the first case in which the court is going to deal with pervasive location tracking in public spaces, but it’s certainly not going to be the last.

Steven Cherry: Very good. Well, Catherine, thanks for joining us yet again, and I hope we can call on you when we next see, you know, technology colliding with our civil liberties.

Catherine Crump: Absolutely. It was a pleasure to talk.

Steven Cherry: We’ve been speaking with ACLU staff attorney Catherine Crump about a Supreme Court decision that will shape the way we as a society make room—or fail to make room—for privacy in an age of ubiquitous technology. For IEEE Spectrum’s “Techwise Conversations,” I’m Steven Cherry.

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This interview was recorded 26 January 2012
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Audio engineer: Francesco Ferorelli

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