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    Update on GPS Tracking and Privacy Case at Supreme Court

    The US Supreme Court has ruled in the case of United States v. Jones. In Jones, the police, without a valid warrant, placed a global positioning satellite (GPS) technology device on the car of a suspected drug dealer in Washington, D.C. The police then tracked the movements of Antoine Jones for several weeks with this device, and they used the data collected to convict him of conspiracy to sell cocaine. The Supreme Court was set to decide whether the warrantless surveillance and tracking was a search under the Fourth Amendment right against unreasonable searches and seizures. In a unanimous decision (Supreme Court pdf; archive pdf), the court held that the placement of a global positioning satellite (GPS) technology device on a vehicle is a search under the Fourth Amendment. There were three opinions: the majority by Justice Scalia, a concurrence by Justice Alito and a concurrence by Justice Sotomayor.

    The majority opinion was premised on the fact that there was a physical trespass, or intrusion, by putting the device on the vehicle. It did not decide an issue of privacy. Scalia’s majority opinion said, that “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.”

    Justice Alito’s concurrence (which included Justices Ginsburg, Breyer and Kagan) accused the majority of “decide[ing] this case based on 18th-century tort law” though “This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time.”

    He continued: “I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.” He noted problems with the majority opinion, including: “First, the Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation). […] By contrast, if long-term monitoring can be accomplished without committing a technical trespass—suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car—the Court’s theory would provide no protection.” The concurrence focused on the long-term monitoring as the problem, not the physical trespass upon the car.

    Justice Sotomayor agreed with the majority opinion (“The Government usurped Jones’ property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection.”), but her concurrence seemed to go further than the majority and Alito’s concurrence by considering the issue of third-party records.

    More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. 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. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. 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.

    There are numerous stories and analyses of the case. See CNNthe New York TimesPolitico, the Washington Post and Wired.

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